EVS19 v Minister for Immigration - [2020] FCCA 1279

FEDERAL CIRCUIT COURT OF AUSTRALIA

EVS19 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1279

Catchwords:
MIGRATION – Protection visa – whether the Tribunal failed to accord the applicant procedural fairness when determining whether the applicant established compelling and compassionate circumstances for the grant of a visa – whether the second respondent failed to carry out the review required by the Migration Act 1958 when determining whether the applicant established compelling and compassionate circumstances for the grant of a visa – whether there is a reasonable apprehension of bias on the part of the second respondent – legal unreasonableness – whether jurisdictional error made out – no jurisdictional error made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424(1), 424AA, 36(2), 5H, 5J

Migration Regulations 1994 (Cth), r 2.03A(3)

Cases cited:

AXL17 v The Minister for Immigration and Border Protection (No 2) (2019)

FCA 778

Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183

CLR 273

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2)

[2004] 144 FCR 1

SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002]

FCA 668

Singh v Singh [2007] NSWSC 1357

Applicant:

EVS19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3202 of 2019

Judgment of:

Judge Humphreys

Hearing date:

22 May 2020

Date of Last Submission:

22 May 2020

Delivered at:

Parramatta

Delivered on:

22 May 2020

REPRESENTATION

Counsel for the Applicant:

Mr Sivaguru

Solicitors for the Applicant:

Parramatta Lawyers

Counsel for the Respondents:

Ms Zinn

Solicitors for the Respondents:

Mills Oakley Lawyers

ORDERS

The application is dismissed.
The applicant to pay the first respondent’s legal costs fixed in the amount of $5400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 3202 of 2019

EVS19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

AS CORRECTED

Introduction

The applicant is a citizen of India. The applicant first entered Australia on 8 September 2009 on a Student visa as a member of a family unit, along with his then-wife, Ms RG. Ms RG, held a substantive Student visa.
Following the breakdown of their relationship, the applicant and Ms RG were divorced. Ms RG advised the Department of Home Affairs (“the Department”) of the divorce. As a result, the Department cancelled the applicant’s Student Partner visa on 31 August 2011. The applicant then remained within Australia, as an unlawful non-citizen.
In September 2013, the applicant applied for a further Partner visa on the basis of a new relationship with a Ms P. That application was refused on 28 August 2014.
The applicant appealed to the Administrative Appeals Tribunal (“the Tribunal”), but withdrew that appeal in July 2015, after his relationship with Ms P ended.
The applicant then applied for a Protection visa on 4 August 2015. At an interview on 9 November 2016, the applicant advised…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading EVS19 v Minister for Immigration

Details

AGLC: EVS19 v Minister for Immigration [2020] FCCA 1279
Case: [2020] FCCA 1279
Decision Date: 22 May 2020

CaseChat Overview and Summary

The applicant, EVS19, sought judicial review of a decision by the Minister for Immigration (the second respondent) concerning the grant of a protection visa. The core of the dispute revolved around whether the applicant had established compelling and compassionate circumstances warranting the visa's grant, and whether the review process conducted by the second respondent was legally sound and free from bias. The matter was heard by Judge Humphreys in the Federal Circuit and Family Court of Australia.

The court was tasked with determining several key legal issues. Firstly, it considered whether the Tribunal had failed to accord the applicant procedural fairness in its assessment of compelling and compassionate circumstances. Secondly, the court examined whether the second respondent had properly conducted the review mandated by the *Migration Act 1958* (Cth) in relation to these circumstances. Thirdly, the court addressed the question of whether there was a reasonable apprehension of bias on the part of the second respondent. Finally, the court had to determine if any jurisdictional error had been made out.

Judge Humphreys found that no jurisdictional error had been made out. The reasoning applied by the court, though not detailed in the provided text, led to the conclusion that the Tribunal had not breached procedural fairness and that the second respondent had carried out the required review appropriately. Furthermore, the court was satisfied that there was no reasonable apprehension of bias. Consequently, the application for judicial review was dismissed.

Orders