Jaikhampan v Minister for Immigration - [2019] FCCA 305

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAIKHAMPAN v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 305

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – applicant providing false or misleading information – refusal by the Tribunal to waive the public interest requirement on the visa – whether the Tribunal gave proper consideration to the circumstances of the sponsor and her child considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.5

Migration Regulations 1994 (Cth)

Cases cited:

Kandel v Minister for Immigration [2015] FCA 706
MZYPZ v Minister for Immigration [2012] FCA 478
Singh v Minister for Immigration & Anor [2017] FCCA 2461

Applicant:

NIRUT JAIKHAMPAN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2181 of 2017

Judgment of:

Judge Driver

Hearing date:

12 February 2019

Delivered at:

Sydney

Delivered on:

13 March 2019

REPRESENTATION

Solicitors for the Applicant:

Ms E Anang of Christopher Levingston and Associates

Solicitors for the Respondents:

Ms D Watson of Australian Government Solicitor

ORDERS

The application filed on 12 July 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2181 of 2017

NIRUT JAIKHAMPAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant, Mr Jaikhampan, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 14 June 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Jaikhampan a temporary partner visa.
The following statement of background facts is derived from the submissions of the parties.
Mr Jaikhampan, a Thai national, arrived in Australia on 27 September 2008 as the holder of a student visa.[1]
[1] Court Book (CB) 36
Mr Jaikhampan was granted subsequent student visas, the last of which ceased on 10 June 2013.[2]
[2] CB 36
On 7 June 2013, prior to cessation of his student visa, Mr Jaikhampan applied for a partner (Temporary) (Class UK) (Subclass 820) visa[3] on the basis of his genuine and continuing de facto relationship with his Australian citizen de facto partner, Ms Rungsakulroj.
[3] CB 1-159
In the visa application, Mr Jaikhampan ticked “NO” to the questions have you ever “been convicted of a crime or offence in any country (including any conviction which is now removed from official records)” and have you ever “been charged with any offence or have proceedings against you overseas or in Australia”.[4]
[4] see CB 18 and 45
At the time of the delegate’s and the Tribunal’s decision, Mr Jaikhampan was required to satisfy the requirements of clause 820.22 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
The delegate and subsequently the Tribunal refused the visa application on the basis that Mr Jaikhampan did not satisfy the requirements of clause 820.226 of the Regulations. At the time of the delegate and the Tribunal’s decision, clause 820.226 was in the following terms: [5]
[5] clause 820.226, Schedule…

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: [2019] FCCA 305
Decision Date: 13 March 2019

CaseChat Overview and Summary

Jaikhampan (the applicant) sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) affirming the Minister for Immigration's refusal to grant her a partner visa. The refusal was based on the applicant providing false or misleading information, and the Tribunal had declined to waive the public interest requirement for the visa. The applicant contended that the Tribunal had failed to give proper consideration to the circumstances of her sponsor and her child.

The central legal issue before the Federal Circuit and Family Court of Australia was whether the Tribunal had committed a jurisdictional error by failing to adequately consider the circumstances of the sponsor and her child when determining whether to waive the public interest requirement for the partner visa.

Judge Driver found that the Tribunal had indeed considered the relevant circumstances of the sponsor and her child. The Tribunal's decision record demonstrated that it had weighed the factors presented, including the sponsor's personal circumstances and the impact on her child, against the public interest requirement. The Court held that the Tribunal's assessment, while perhaps not to the applicant's satisfaction, did not amount to a failure to consider or a misapplication of the law, and therefore no jurisdictional error had occurred. The application for judicial review was dismissed.

Orders