FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUNJAN v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 3910 |
| Catchwords: MIGRATION – Application for sub-class 820 visa – failure to meet any of the criteria as set out in Reg 801 of Migration Regulations – no demonstrated jurisdictional error on the part of the Tribunal – application for review dismissed. |
| Legislation: Migration Regulations 1994 (Cth) regs.801.221 (1), (2), (3), (4), (5), (6), (8). |
| Cases cited: Minister for Immigration and Citizenship v SZDMS (2010) 240 CLR 611 |
| Applicant: | HARIDESHWAR SINGH HUNJAN |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 1 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 4 December 2018 |
| Date of Last Submission: | 4 December 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 4 December 2018 |
REPRESENTATION
| Applicant: | Self represented |
| Solicitors for the Respondents: | Sparke Helmore |
IT IS ORDERED:
That the Applicant pay the First Respondent’s costs of and incidental to these proceedings fixed in the amount of $5000.
That the Application for review filed on 2 January 2018 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1 of 2018
| HARIDESHWAR SINGH HUNJAN |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant is a citizen of India who arrived in Australia on 7 July 2009, pursuant to a Student (Temporary) (Class TU) Visa, the currency of which ceased on 15 June 2011. There were a number of visa-related applications made by the Applicant (which are not relevant for today’s purposes) between 15 June 2011 and the date on which he made application for the visa the subject of this Court’s consideration.
The result of the applications for review and subsequent litigation relating to those prior visa applications was that the Applicant’s application for a subclass 820 visa was refused, and that refusal was subsequently upheld by a decision of this Court and of the Federal Court.
The application which the Applicant has made is for a clause 801.221 visa. A precondition to the granting of any such visa is that the Applicant held, up to the time of the making of the decision by the Tribunal, a subclass 820 visa. As just stated, the Applicant was not, and never was, the holder of a subclass 820 visa. The Tribunal, therefore, was satisfied that the Applicant did not meet the criteria as set out in clauses 801.221(2), (3), (4), (5) or (6) of the Migration Regulations 1994 (Cth) (“The Regulations”).
In such circumstances, the Tribunal properly held that the Applicant had never held the relevant subclass 820 visa. The Tribunal was also satisfied that the Applicant did not meet the criteria as set out in clause 801.221(8) of the Regulations. In those circumstances, the Tribunal correctly found that the Applicant did not meet any of the criteria in clause 801.221. For those reasons, the Applicant could never have met any of the relevant conditions required for him to be granted a permanent spousal visa. His entire application for review is therefore without merit.
The decision made by the Tribunal was reasonable and proper. It cannot be said that no other rational or logical decision-maker could not have made the same decision in respect of the application before it. [1]
[1] See Minister for Immigration and Citizenship v SZDMS (2010) 240 CLR 611 at [130] per Crennan
Further, it could not be said that the decision of the Tribunal could be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76].
In all of the circumstances, the application for review is without merit on the grounds as set out above, and as set out in the submissions of the First Respondent. It is also noted that the application of review contains no grounds upon which any justiciable matter arises. The application for review is open for dismissal on that basis as well. Accordingly, it is ordered that the application for review be dismissed.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Egan
Date: 10 January 2019
nd Bell JJ.
- AGLC
- Hunjan v Minister for Home Affairs [2018] FCCA 3910
- Case
- [2018] FCCA 3910
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the MRT had committed a jurisdictional error in its assessment of Mr. Hunjan's visa application. Specifically, the Court was required to determine if the Tribunal had failed to take into account relevant considerations or had taken into account irrelevant considerations when it concluded that Mr. Hunjan had not met the eligibility requirements for the Subclass 820 visa.
Egan J found no evidence of jurisdictional error on the part of the MRT. The Court's reasoning focused on the Tribunal's detailed examination of the evidence presented by Mr. Hunjan in relation to the criteria under Regulation 801. The Tribunal had, in the Court's view, adequately considered the applicant's submissions and the supporting documentation, and its conclusion that the criteria were not met was a finding of fact based on the evidence before it, rather than an error of law. The Court applied the principles of administrative law, confirming that judicial review is concerned with the legality of a decision-making process, not with substituting the court's own view for that of the original decision-maker or tribunal.
Consequently, Egan J dismissed Mr. Hunjan's application for review.
Orders
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Evidence
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Decision
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Ratio Decidendi
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