Fletcher v Minister for Immigration - [2013] FCCA 80

FEDERAL CIRCUIT COURT OF AUSTRALIA

FLETCHER & ORS v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 80

Catchwords: MIGRATION – Application considered futile as visa has been granted – application dismissed.

Legislation: Migration Act 1958 (Cth), ss.479 and 486(c)

Federal Magistrates Court Rules 2001 (Cth) r.13.10(a)

First Applicant:

JAMES FLETCHER

Second Applicant:

DOLKAR LHAMO

Third Applicant:

TENZIN PEMA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 222 of 2012

Judgment of:

Judge Simpson

Hearing date:

12 April 2013

Date of Last Submission:

12 April 2013

Delivered at:

Adelaide

Delivered on:

12 April 2013 – ex-tempore

REPRESENTATION

For the first Applicant:

In person

For the second Applicant:

In person

For the third Applicant:

No appearance

Counsel for the first and second Respondents:

Ms K Whittemore

Solicitors for the first and second Respondents:

Sparke Helmore Lawyers

ORDERS

The Application filed on 26 September 2012 and all extant applications are dismissed pursuant to Rule 13.10a of the Federal Circuit Court Rules 2001.
The first applicant do pay the first respondent’s costs fixed in the sum of SEVEN THOUSAND AND THREE HUNDRED DOLLARS ($7,300).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 222 of 2012

JAMES FLETCHER

First Applicant

DOLKAR LHAMO

Second Applicant

TENZIN PEMA

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex-tempore settled reasons

I have before me an Application in a Case filed by the first respondent on 30 January 2013 in which the following orders are sought: There is an order firstly that the application filed on 26 September 2012 be dismissed pursuant to r.13.10(a) of the Federal Magistrates Court Rules. There is also an application for the costs.
The substantive proceeding that is before me is an application seeking judicial review of a decision of the Migration Review Tribunal dated 22 August 2012. The application was filed on 26 September 2012.
The background to the matter is that on 19 April 2011 the third applicant, who is the visa applicant, is a citizen of India who applied to the Department of Immigration and Citizenship for an Other Family (Migrant) (Class BO) visa. This class of visa contains a subclass of visa known as a subclass 116 (Carer) visa. The visa applicant was sponsored for a subclass 116 visa by the first applicant who is her brother-in-law and who is an Australian Citizen.
The third applicant also appointed Mr Fletcher as her authorised receipt.
The second applicant is the wife of the first applicant and in the submission of the respondent, has no standing to bring the proceedings by reason of ss.479 and 486(c) of the Migration Act 1958 (Cth). It is submitted by the respondent that the second applicant ought to be removed as a party to these proceedings.
On 24 September 2011 the delegate of the first respondent refused to grant an Other Family (Migrant) (Class BO) subclass 116 (Carer) to the third applicant. On 22 August 2012, the…

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: [2013] FCCA 80
Decision Date: 12 April 2013

CaseChat Overview and Summary

In *Fletcher v Minister for Immigration*, heard in the Federal Circuit Court of Australia before Judge Simpson, the applicant sought judicial review of a decision by the Minister for Immigration. However, the core of the dispute revolved around the applicant's visa status, which had been granted prior to the court hearing, rendering the application for review effectively moot.

The central legal issue before the Court was whether it retained jurisdiction to hear and determine an application for judicial review when the substantive matter that formed the basis of the application had been resolved by the grant of the visa. The Court was required to consider the implications of this supervening event on the ongoing legal proceedings.

Judge Simpson applied Rule 13.10a of the Federal Circuit Court Rules 2001, which permits the dismissal of an application where it is considered futile. The Court reasoned that as the applicant had been granted the relevant visa, the purpose of the judicial review application had been extinguished. Consequently, continuing with the proceedings would serve no practical purpose.

Accordingly, the Court dismissed the application filed on 26 September 2012 and all extant applications. The first applicant was also ordered to pay the first respondent's costs fixed at $7,300.

Orders

Orders of the court

1. The Application filed on 26 September 2012 and all extant applications are dismissed pursuant to Rule 13.10a of the Federal Circuit Court Rules 2001.

2. The first applicant do pay the first respondent’s costs fixed in the sum of SEVEN THOUSAND AND THREE HUNDRED DOLLARS ($7,300).

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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