James v Minister for Immigration - [2020] FCCA 1888

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAMES & ORS v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1888

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Temporary Work (Skilled) (Subclass 457) visa – whether Tribunal asked itself the wrong question or made findings of law that were not open to it – decision of Tribunal affirmed – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss.140GB, 476

Migration Regulations 1994 (Cth) regs.2.72, 2.75

Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)

First Applicant:

JASON SPENCER JAMES

Second Applicant:

KELLY ANN AYRE

Third Applicant:

VINNY JAMES

Fourth Applicant:

SONNY JAMES

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 20 of 2020

Judgment of:

Judge Street

Hearing date:

10 July 2020

Date of Last Submission:

10 July 2020

Delivered at:

Sydney

Delivered on:

10 July 2020

REPRESENTATION

Solicitors for the Applicant:

Mr D Estrin, Estrin Saul Lawyers

Counsel for the Respondents:

Ms C Taggart

Solicitors for the Respondents:

Sparke Helmore

ORDERS

Pursuant to div 11.2 of the Federal Circuit Court Rules 2001 (Cth), the first applicant is appointed as the litigation guardian of the third and fourth applicants and the Court otherwise dispenses with the requirements of the Rules.
The application is dismissed.
The first and second applicants pay the first respondent’s costs fixed in the amount of $3,737.00.

DATE OF ORDER: 10 July 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 20 of 2020

JASON SPENCER JAMES

First Applicant

KELLY ANN AYRE

Second Applicant

VINNY JAMES

Third Applicant

SONNY JAMES

Fourth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 6 January 2020 affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the first applicant a Temporary Business Entry (Class UC) visa.
The first applicant is the partner of the second applicant and the third to fourth applicants are children.
The first applicant is a citizen of England and applied for the relevant visa, including the other applicants as family members, on 11 March 2016. The application for the visa was a Temporary Work (Skilled) (subclass 457) visa.
On 30 March 2017, the Delegate found that the first applicant failed to meet the criteria for the grant of the visa. Relevantly, the Delegate found that there was a failure to meet the Public Interest Criteria (PIC) PIC4020 requirements of Sch 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).
The applicants applied for review on 11 April 2017. The applicants attended a hearing before the Tribunal on 24 October 2019 to give evidence and present arguments.
On 5 December 2019, the Tribunal wrote to the representative for the…

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 1888
Decision Date: 10 July 2020

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision made by the Administrative Appeals Tribunal (AAT) in relation to a Temporary Work (Skilled) (Subclass 457) visa. The applicant, Mr James, sought to challenge the AAT's refusal to grant the visa.

The primary legal issue before the Federal Court was whether the AAT had asked itself the wrong question or made findings of law that were not open to it when assessing Mr James's visa application. This involved an examination of the Tribunal's interpretation and application of the relevant migration legislation and regulations.

Justice Street found that the AAT had correctly approached its task and had not erred in law. The Tribunal had properly considered the evidence before it and applied the correct legal principles in determining whether Mr James met the criteria for the Subclass 457 visa. Consequently, the application for judicial review was dismissed.

Orders