Jatin v Minister for Immigration - [2018] FCCA 966

FEDERAL CIRCUIT COURT OF AUSTRALIA

JATIN v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 966

Catchwords:
MIGRATION – Student (temporary) (class TU) higher education sector (subclass 573) visa – breach of condition 8516 – whether tribunal exhibited bias towards applicant – whether tribunal member’s mind was closed or open to persuasion by the applicant– no bias detected in tribunal audio recording or transcript – tribunal did not close off discussion with applicant – tribunal member asked open questions arising from applicant’s oral submissions to the tribunal – finding of the existence of actual or apprehended bias not open on the evidence.

Legislation:

Migration Act 1958, s.116
Migration Regulations 1994, Schedule 8 visa condition 8516

Cases cited:

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Isbester v Knox City Council (2015) 255 CLR 135
MZZLO v Minister for Immigration and Border Protection (No.2) (2016) 246 FCR 111
Re JRL; Ex parte CJL (1986) 161 CLR 342

Sharma v Minister for Immigration and Border Protection [2017] FCAFC 227

Singh v Minister for Immigration and Border Protection [2017] FCA 994
Singh v Minister for Immigration and Border Protection [2017] FCCA 247
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

Applicant:

JATIN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2086 of 2015

Judgment of:

His Honour Judge Wilson

Hearing date:

7 March 2018

Date of Last Submission:

7 March 2018

Delivered at:

Melbourne

Delivered on:

20 April 2018

REPRESENTATION

Counsel for the Applicant:

Mr A Aleksov

Solicitors for the Applicant:

A R Law Services

Counsel for the First Respondent:

Mr T C Smyth

Solicitors for the First Respondent:

DLA Piper Australia

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

DLA Piper Australia

ORDERS

The application filed 17 February 2015 and amended 1 March 2018 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the amount of $6,625.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2086 of 2015

JATIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, whose subclass 573 higher education sector visa was ordered to be cancelled, sought judicial review in this court arguing that the Administrative Appeals Tribunal had not approached the hearing of the merits review with a mind open to persuasion and that the tribunal therefore exhibited bias towards the applicant.
The question in this case was whether the tribunal, in hearing the merits review, so conducted itself as to show that a reasonable bystander might perceive that the tribunal might not have had an impartial mind.

Synopsis

In my judgment, there was no merit in the applicant’s contentions in this judicial review application. I dismiss this proceeding and order the applicant to pay the minister’s costs.

A short factual recital

On 14 January 2014 the applicant was served with a notice indicating that he had failed to comply with…

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: [2018] FCCA 966
Decision Date: 20 April 2018

CaseChat Overview and Summary

The applicant, Jatin, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant Jatin a visa. The matter came before His Honour Judge Wilson in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing Jatin's application, thereby vitiating the decision.

His Honour Judge Wilson found that the delegate had indeed failed to consider a crucial piece of evidence that was before them at the time of the decision. This failure to consider relevant material amounted to a jurisdictional error. The Court applied the principles established in administrative law, which require decision-makers to consider all relevant information placed before them. The Court reasoned that the overlooked evidence was material to the assessment of the visa criteria, and its omission meant the decision was not made according to law.

Consequently, His Honour Judge Wilson quashed the Minister's decision and remitted the matter to the Minister for redetermination according to law.

Orders