Hariady v Minister for Immigration - [2018] FCCA 407

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARIADY v MINISTER FOR IMMIGRATION

[2018] FCCA 407

Catchwords:
MIGRATION – Substantive application seeking review of a decision of a delegate of the Minister – application for a family sponsored visitor visa deemed invalid as the applicant was onshore at the time of application.

PRACTICE & PROCEDURE – Application in a Case seeking dismissal pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth) – whether there are reasonable prospects of success – no reasonable prospects of success – Application in a Case allowed.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.17A
Federal Court of Australia Act 1977 (Cth), s.31A
Federal Circuit Court Rules 2001 (Cth), r.13.10

Migration Act 1958 (Cth), ss.5, 46, 47, 48, 476

Migration Regulations 1994 (Cth), reg.2.12, sch 1

Cases cited:

Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60; (2008) 167 FCR 372
Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499

Applicant:

LINDA HARIADY

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 3262 of 2017

Judgment of:

Judge Nicholls

Hearing date:

9 February 2018

Date of Last Submission:

9 February 2018

Delivered at:

Sydney

Delivered on:

9 February 2018

REPRESENTATION

Applicant:

In person

Solicitors for the Respondent:

Ms H Dejean of Australian Government Solicitor

ORDERS

The application made on 20 October 2017 is dismissed pursuant to Rule 13.10(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the respondent’s costs set in the amount of $2,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3262 of 2017

LINDA HARIADY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

On 9 February 2018 I made orders in relation to an Application in a Case (“AIC”) made by the Minister on 18 January 2018. These are the written reasons for judgment.
Pursuant to the AIC, the Minister sought orders pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) on the basis that Ms Hariady has no reasonable prospect of successfully prosecuting the substantive application she made to the Court pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 20 October 2017.
The following is in evidence before the Court:
a)The affidavit of Linda Hariady, [no occupation specified], made on 14 October 2017.
b)The affidavit of Hervee Dejean, solicitor, made on 17 January 2018.
c)The affidavit of Hervee Dejean, solicitor, made on 29 January 2018.
As mentioned above, Ms Hariady filed her substantive application to the Court on 20 October 2017, which sought review of the decision of a delegate of the Minister made on 10 October 2017, which determined that her application for a visitor (sponsored family) (subclass 600) visa was invalid.
Pursuant to orders made on 18 January 2018, the Minister filed written submissions on 25 January 2018. Ms Hariady filed no written submissions.
The background…

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 407
Decision Date: 9 February 2018

CaseChat Overview and Summary

In *Hariady v Minister for Immigration*, the applicant sought judicial review of a decision by a delegate of the Minister for Immigration, which had deemed her application for a family sponsored visitor visa invalid. The applicant was onshore in Australia at the time she lodged her visa application. The Minister applied to the Federal Circuit Court for dismissal of the application pursuant to rule 13.10 of the *Federal Circuit Court Rules 2001* (Cth), arguing that the application had no reasonable prospects of success.

The central legal issue before Judge Nicholls was whether the applicant's onshore application for a family sponsored visitor visa was validly made, or if it was correctly deemed invalid by the delegate. This required the court to consider the relevant provisions of the *Migration Act 1958* (Cth) and associated regulations concerning the validity of visa applications lodged by individuals present in Australia.

Judge Nicholls reasoned that the legislative framework governing visitor visas, particularly when applied to onshore applicants, mandates specific requirements for validity. The court found that the applicant's circumstances did not meet these requirements, leading to the conclusion that her visa application was indeed invalid. Consequently, the court determined that the applicant's application for judicial review lacked reasonable prospects of success.

The Application in a Case seeking dismissal was allowed, and the applicant's application for judicial review was dismissed.

Orders