Gounder v Minister for Immigration - [2015] FCCA 1658

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOUNDER v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1658

Catchwords:
MIGRATION – Partner visa – application – relationship ceased – sponsor withdrew sponsorship of applicant – applicant claimed to be victim of family violence –independent expert opinion obtained by Tribunal – opinion found that the applicant had not suffered relevant family violence – visa refused – matter remitted by consent to differently constituted Tribunal – opinion sought by another independent expert from the same company as the first independent expert – opinion found that the applicant had not suffered relevant family violence – visa refused.

ADMINISTRATIVE LAW – Review of decision of Migration Review Tribunal – whether the Tribunal gave no reasons for its conclusion that it was not satisfied that the applicant had suffered relevant family violence – whether the Tribunal’s decision was affected by jurisdictional error by reason that it sought a report from the same company of independent experts as the first Tribunal and/or by reason that independent opinion relied on by the first Tribunal was provided to the independent expert used by the present Tribunal without any explanation of the flaw in the first report – present Tribunal bound to use the same company/provider of independent experts by legislative instrument – no jurisdictional error or procedural unfairness – application dismissed.

PRACTICE & PROCEDURE – Whether applicant could rely on amended application filed late and without leave.

Legislation:

Migration Act 1958 (Cth), ss.349, 368

Migration Regulations 1994 (Cth), regs.1.22, 1.23, cl.801.221 of sch.2
Instrument number IMMI 13/023 “Specification of Organisations”, legislative instrument F2013L00586

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Hadchity v Minister for Immigration & Citizenship (2010) 266 ALR 579
Isbester v Knox City Council [2015] HCA 20
Kocakaya v Minister for Immigration & Citizenship [2013] FCA 55
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Metropolitan Fire and Emergency Services Board v Churchill [1998] VSC 51
Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362
Minister for Immigration & Multicultural Affairs v Jia (2001) 75 ALJR 679
Re Refugee Review Tribunal; ex parte H (2001) 75 ALJR 982
SZTGS v Minister for Immigration & Border Protection [2014] FCA 908
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707

Applicant:

RUNESHWARAN SHIVA GOUNDER

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 239 of 2015

Judgment of:

Judge Smith

Hearing date:

5 May 2015

Date of Last Submission:

5 May 2015

Delivered at:

Sydney

Delivered on:

19 June 2015

REPRESENTATION

Counsel for the Applicant:

Mr J.R. Young

Solicitors for the Applicant:

Shamser Thapa & Associates

Counsel for the First Respondent:

Mr D. Hughes

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The applicant have leave to rely upon the amended application filed on 20 April 2015.
The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 239 of 2015

RUNESHWARAN…

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: [2015] FCCA 1658
Decision Date: 19 June 2015

CaseChat Overview and Summary

The applicant, Mr Gounder, sought judicial review of a decision by the Migration Review Tribunal (MRT) to refuse his partner visa application. The sponsorship for the visa had been withdrawn by his partner, and Mr Gounder claimed to be a victim of family violence. The MRT had previously obtained an independent expert opinion which concluded that Mr Gounder had not suffered relevant family violence. The matter was remitted to a differently constituted MRT, which again sought an independent expert opinion from the same company as the first. This second opinion also found that Mr Gounder had not suffered relevant family violence, leading to the refusal of his visa.

The primary legal issues before the court were whether the MRT had failed to provide adequate reasons for its conclusion that it was not satisfied Mr Gounder had suffered relevant family violence, and whether the MRT's decision was affected by jurisdictional error. This alleged jurisdictional error arose from the MRT's decision to obtain a report from the same company of independent experts as the first Tribunal, and/or because the independent opinion relied upon by the first Tribunal was provided to the independent expert used by the present Tribunal without explanation of any perceived flaw in the first report. The court also considered whether the applicant could rely on an amended application filed late and without leave.

Justice Smith found that the MRT was bound by a legislative instrument to use the same company or provider of independent experts. Consequently, there was no jurisdictional error or procedural unfairness in the MRT's decision to obtain a report from that provider. The court also determined that the applicant could not rely on the amended application filed late and without leave.

The application for judicial review was dismissed.

Orders