Hosain v Minister for Immigration - [2020] FCCA 306

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOSAIN v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 306

Catchwords:
MIGRATION – Application for review of decision of the Administrative Appeals Tribunal (Tribunal) – whether the Tribunal failed to consider a claim or an integer of a claim – whether the Tribunal failed to exercise its jurisdiction – whether the Tribunal considered the relevant criteria set out at regulation 1.15A of the Migration Regulations 1994 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 476
Migration Regulations 1994 (Cth), reg.1.15A, sch.2, cl.820.211

Cases cited:

He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41; (2017) 161 ALD 17
Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5; (2016) 236 FCR 303; (2016) 149 ALD 69
Li v Minister for Immigration and Citizenship [2008] FCA 902; (2008) 102 ALD 354
Sun v Minister for Immigration and Border Protection [2017] FCA 1270; (2017) 157 ALD 437

Applicant:

MD. ALTAB HOSAIN

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2416 of 2016

Judgment of:

Judge Nicholls

Hearing date:

11 February 2020

Date of Last Submission:

11 February 2020

Delivered at:

Sydney

Delivered on:

20 February 2020

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Mr G. Johnson

Solicitors for the Respondents:

HWL Ebsworth Lawyers

ORDERS

The application made on 8 September 2016 and amended on 27 February 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2416 of 2016

HOSAIN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTUAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 8 September 2016 and amended on 27 February 2017, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 15 August 2016, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a Partner (Temporary) (Class UK) subclass 820 visa (“the visa”) to Mr MD Altab Hosain.
The evidence before the Court is contained a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).

Background

Mr Hosain is a citizen of citizen of Bangladesh (CB 2). He arrived in Australia for the purpose of studying here ([9] at CB 347). He made his application for the Partner (Temporary) (Class UK) subclass 820 and Partner (Residence) (Class BS) subclass 801 visas (“the visas”) which was received by the Minister’s department on 17 June 2014 (CB 1–CB 63). Mr Hosain made his application on the basis of his relationship with his sponsor, Ms Ama Pokuah, an Australian permanent resident. Mr Hosain attached a marriage certificate dated 27 May 2014 to his visa application (CB 53). Mr Hosain provided further documents to the Minister’s department…

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 306
Decision Date: 20 February 2020

CaseChat Overview and Summary

Hosain (the applicant) sought judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal). The applicant contended that the Tribunal had failed to consider a claim, or an integral part of a claim, and had therefore failed to exercise its jurisdiction. The central question before the court was whether the Tribunal had properly considered the relevant criteria stipulated by regulation 1.15A of the *Migration Regulations 1994* (Cth).

The court was required to determine whether the Tribunal's decision involved a jurisdictional error. This involved assessing whether the Tribunal had indeed overlooked or failed to address a claim or a component of a claim put forward by the applicant, and whether this failure amounted to a lack of jurisdiction. The court also had to ascertain if the Tribunal had applied the correct legal standards as prescribed by regulation 1.15A.

Justice Nicholls found that no jurisdictional error had occurred. The Tribunal had, in fact, considered the relevant criteria under regulation 1.15A and had not failed to consider any claim or integer of a claim. Consequently, the application for judicial review was dismissed.

Orders