Guab v Minister for Immigration - [2018] FCCA 3083

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUAB v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3083

Catchwords:
MIGRATION – Visa – partner visa – whether dependent child satisfied health criteria – whether Tribunal ignored relevant information – whether decision unreasonable – whether Tribunal erred in finding that certain public interest criteria should not be waived – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.65

Migration Regulations 1994 (Cth), r.2.25A, cl.309.228(2)(a) & (b), PIC 4007(1) & (2)

Cases cited:

Minister for Immigration and Multicultural Affairs v Ma (1998) 82 FCR 455

Bui v Minister for Immigration & Multicultural Affairs (1999) 85 FCR 134

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant:

KATRINA ISABEL SUZARA GUAB

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 59 of 2017

Judgment of:

Judge Heffernan

Hearing date:

4 September 2018

Date of Last Submission:

4 September 2018

Delivered at:

Adelaide

Delivered on:

30 October 2018

REPRESENTATION

Solicitors for the Applicant:

Ms Gabito for Gabito Lawyers

Counsel for the Respondents:

Mr O'Leary

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The application is dismissed.
The applicant is to forthwith pay the costs of the first respondent in the amount of SEVEN THOUSAND, TWO HUNDRED DOLLARS ($7,200).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 59 of 2017

KATRINA ISABEL SUZARA GUAB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 18 January 2017. That decision affirmed an earlier decision of a delegate of the first respondent which had refused to grant a visa to Mr Rafael Ruivivar (‘the visa applicant’). The visa sought by the visa applicant was a Partner (Provisional) (Class UF) subclass 309 visa (‘the visa’) pursuant to s.65 of the Migration Act1958 (Cth) (‘the Act’).
The applicant in this matter is the visa applicant’s sponsor (‘the review applicant’).
Prior to the hearing, the review applicant filed an affidavit she had affirmed dated 22 May 2018. That affidavit was comprised largely of information not before the Tribunal and essentially sought to address the merits of the Tribunal decision. It is well-established that this Court is not empowered to reconsider the merits of the Tribunal decision. A request that it should do so would be impermissible and antithetical to the limited nature of judicial review. In any event, counsel for the review applicant indicated that she did not seek to rely on that affidavit.
The review applicant raises three grounds of application. Ground 1 is highly particularised and, on one view, amounts to a number of distinct grounds. I have dealt with each particularised complaint separately and the ground cumulatively.
The grounds are as follows:
“1. The decision of the Administrative Appeals Tribunal (‘the Tribunal’) was affected by jurisdictional error whereby the Tribunal failed to properly consider whether the visa applicant satisfy the clauses set out in…

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: [2018] FCCA 3083
Decision Date: 30 October 2018

CaseChat Overview and Summary

The applicant, Guab, sought judicial review of a decision by the Minister for Immigration, represented by the respondent, concerning a partner visa application. The core of the dispute revolved around whether a dependent child included in the visa application met the relevant health criteria, and whether the Administrative Appeals Tribunal (AAT) had failed to consider crucial information or made an unreasonable decision in relation to the application.

The court was required to determine whether the AAT had erred in its assessment of the dependent child's health status, specifically whether the Tribunal had ignored relevant information presented by the applicant. Furthermore, the court had to consider whether the AAT's decision that certain public interest criteria should not be waived was unreasonable.

Judge Heffernan found that the AAT had not ignored relevant information and that its decision regarding the health criteria was open to it on the evidence before it. The Tribunal had properly considered the information provided and applied the relevant legislative provisions. Consequently, the court concluded that the AAT's decision was not unreasonable and that no error of law had occurred.

The application for judicial review was dismissed.

Orders