JS Bundy Pty Ltd v Minister for Immigration

[2020] FCCA 237

FEDERAL CIRCUIT COURT OF AUSTRALIA

JS BUNDY PTY LTD v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 237

Catchwords:
MIGRATION – Application to rely on fresh evidence – whether evidence went to establishing jurisdictional error or not – application refused.

Cases cited:

Gupta v Minister for Immigration and Border Protection [2016] FCA 1004

Applicant: JS BUNDY PTY LTD

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 730 of 2019

Judgment of: Judge Egan

Hearing date: 4 February 2020

Date of Last Submission: 4 February 2020

Delivered at: Brisbane

Delivered on: 4 February 2020

REPRESENTATION

Applicant: Mr. G. Kim given leave to appear as Director for Applicant company.

Counsel for the 1^st Respondent: Ms K. Reid

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 730 of 2019

JS BUNDY PTY LTD

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In this matter, the applicant, through its director, Mr Kim, was granted leave pursuant to the provisions of r.9.04 of the Federal Circuit Court Rules 1994 (Cth) for Mr Kim to appear on its behalf at the hearing of the application.

2. In support of the applicant’s application, Mr Kim sought to rely upon written submissions filed on behalf of the applicant on 16 January 2020.  Annexed to those submissions were documents listed in paragraph 17 of the first respondent’s written submissions, namely:

   a)decision record of the Tribunal;

   b)financial report – profit and loss for the year ended 30 June 2019, submitted as being new evidence;

   c)email from PRD Nationwide to the applicant dated 7 August 2019, attaching a deed of extension of lease, also submitted to be new evidence by the first respondent;

   d)a tenant ledger as at 15 January 2020 for 10 Mulgrave Street, Bundaberg West, also submitted by the first respondent to be new evidence; and

   e)a tenant ledger as at 15 January 2020 for 23 Hunter Street, Bundaberg, again submitted by the first respondent as being new evidence.

3. The Court agrees with the first respondent’s submission to the effect that the documents numbered 17(b)-(e) inclusive are new evidence, and that, as such, ought not to be considered by the Court in its deliberations. 

4. In the case of Gupta v Minister for Immigration and Border Protection [2016] FCA 1004, Perry J considered the circumstances in which a court ought to allow consideration of new evidence. At [27] of his Honour’s reasons, his Honour said:

   “[27] … it is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal unless it bears on a jurisdictional error:  MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8] (Nicholson J); SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 at [27] (McKerracher J).  This is because neither this Court nor the Federal Circuit Court has jurisdiction to correct mistaken findings of fact by the Tribunal but rather only to consider whether the decision of the Tribunal is invalid by reason of a jurisdictional error:  Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 240 [65] (Sackville J), 257 [146] (Kenny J).”

5. The Court is not satisfied that the attempt by Mr Kim to rely upon the documents attached to the written submissions is anything other than an attempt to seek an impermissible merits review of the decision of the Administrative Appeals Tribunal. The new material does not purport to establish jurisdictional error.

6. In those circumstances, the Court accedes to the application made on behalf of the first respondent to exclude from the Court’s consideration the documents attached to the written submissions filed on 16 January 2020. The Court also, consonant with such ruling, disregards any reference in such written submissions to any such documents.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date:  7 February 2020