Fiefia v Minister for Immigration - [2020] FCCA 2941

FEDERAL CIRCUIT COURT OF AUSTRALIA

FIEFIA v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2941

Catchwords:
MIGRATION – Subclass 820 visa – decision by the delegate of the Minister of Immigration and Border Protection to not grant Subclass 820 visa – failure to satisfy criteria 3001 of Schedule 3 of Migration Regulations 1994 (Cth) – whether the Administrative Appeals Tribunal’s decision was effected by jurisdictional error – whether the Administrative Appeals Tribunal failed to consider compelling reasons – length of relationship – consideration of departmental policy – difficulty with fertility – ability to conceive – failure to consider period of separation – active intellectual engagement – failure to consider consequences of separation -– application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 137L, 366A, 473DD.

Migration Regulations 1994 (Cth) Schedule 2, clause 820.211; Schedule 3,

criterion 3001.

Cases cited:

Babicci v Minister for Immigration and Multicultural and Indigenous Affairs

(2005) 141 FCR 285

MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478

Paduano v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 211

McNamara v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1096

Minister for Immigration and Ethnic Affairs v Wu Shan Liang 91996) 185 CLR

259

Collector of Customs v Pozzolanic (1993) 43 FCR 280

Waensila v Minister for Immigration and Border Protection (2016) 241 FCR

121

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

[2004] FCAFC 263; (2004) 144 FCR 1

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593

Minister for Home Affairs v Omar [2019] FCAFC 188

Hands v Minister for Immigration and Border Protection (2019) 364 ALR 423

BAL19 v Minister for Home Affairs [2019] FCA 2189

Applicant:

SEINI IVA FIEFIA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2724 of 2016

Judgment of:

Judge Mercuri

Hearing date:

8 May 2020

Date of Last Submission:

8 May 2020

Delivered at:

Melbourne

Delivered on:

30 October 2020

REPRESENTATION

Counsel for the applicant:

Mr Krohn

Solicitors for the applicant:

Erskine Rodan & Associates

Counsel for the respondents:

Mr Hosking

Solicitors for the respondents:

Clayton Utz

ORDERS

The applicant’s application filed on 14 December 2016 and as amended on 17 August 2017, 20 April 2020 and 21 April 2020 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2724 of 2016

SEINI IVA FIEFIA

Applicant

and

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant seeks judicial review of the decision of the Administrative Appeals Tribunal (‘the Tribunal’) to affirm a decision of the Minister for Immigration and Border Protection’s delegate (‘the Minister’) to refuse to grant the applicant a Subclass 820 visa (‘the visa’).
By a further amended application filed on 21 April 2020,[1] the applicant raised five grounds of review and argues that the Tribunal’s…

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.

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Details

Case: [2020] FCCA 2941
Decision Date: 30 October 2020

CaseChat Overview and Summary

The applicant, Fiefia, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the delegate of the Minister for Immigration and Border Protection's refusal to grant a Subclass 820 partner visa. The primary dispute concerned whether the AAT's decision was affected by jurisdictional error, specifically in relation to the applicant's failure to satisfy criterion 3001 of Schedule 3 of the *Migration Regulations 1994* (Cth).

The court was required to determine whether the AAT had failed to consider compelling reasons presented by the applicant that might have warranted an exception to the usual requirements. These compelling reasons included the length of the applicant's relationship, difficulties with fertility and the ability to conceive, the period of separation between the applicant and their partner, and the active intellectual engagement within the relationship. The court also considered whether the AAT had failed to adequately consider the consequences of such separation.

Justice Mercuri found that the AAT had not committed jurisdictional error. The Tribunal had considered the relevant factors, including the length of the relationship, fertility issues, and the consequences of separation, in its assessment of whether compelling reasons existed. The AAT's decision was based on its evaluation of the evidence and departmental policy, and its findings were open to it on the material before it. The court concluded that the AAT had not failed to consider any relevant matter or taken into account any irrelevant matter.

Consequently, the applicant's application for judicial review was dismissed. The applicant was also ordered to pay the first respondent's costs, to be fixed if not agreed.

Orders

Orders of the court

ORDERS

1. The applicant’s application filed on 14 December 2016 and as amended on 17 August 2017, 20 April 2020 and 21 April 2020 be dismissed.

2. The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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