Hunjan v Minister for Home Affairs

[2018] FCCA 3910

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

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:

1. That the Applicant pay the First Respondent’s costs of and incidental to these proceedings fixed in the amount of $5000.

2. 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

1. 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.

2. 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.

3. 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”).

4. 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.

5. 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

6. 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].

7. 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.