Ljiljana Gacic & Anor v Minister for Immigration and Citizenship

LJILJANA GACIC & ANOR
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2013] HCASL 14
S161/2012

The applicants applied unsuccessfully for the grant of a Business Skills - Established Business (Residence) (Class BH) visa[1].
[1]Migration Regulations 1994 (Cth), Sched 1 item 1104A, Sched 2 item 845.
On 19 November 2010 the Migration Review Tribunal affirmed the decision to refuse the grant of the visas.
An application for judicial review of the Tribunal's decision was dismissed by the Federal Magistrates Court (Smith FM).
The applicants appealed to the Federal Court of Australia (Besanko J). The sole ground of appeal was that the Tribunal committed jurisdictional error in failing to comply with s 360 of the Migration Act 1958 (Cth). This ground related to an exchange between the Tribunal member and the second applicant in the course of the hearing. The applicants contended that the Tribunal had discouraged the second applicant from giving evidence that he complied with the primary criteria for the grant of the Business Skills visa. Besanko J rejected this challenge for two reasons. First, his Honour said that it was plain that the Tribunal and the applicants had proceeded on the basis that it was the first applicant who sought to satisfy the primary criteria for the grant of the visa. When the exchange between the Tribunal member and the second applicant was read in the context of the history of the matter it was apparent that the capacity of the second applicant to satisfy the primary criteria for a Business Skills visa was not an issue on which he sought to give evidence and present arguments[2]. A second reason for rejecting the applicants' appeal was that even if the Tribunal failed to allow the second applicant to give evidence on the success of his business career, the Tribunal had been right to conclude that at the time of decision he could not satisfy the criteria for the grant of the visa[3]. A criterion for the grant of the visa required the applicant to have an ownership interest in one or more established main businesses in Australia for a specified period[4]. The Tribunal found that the second applicant did not meet this criterion. The applicants' appeal was dismissed.
[2]Gacic v Minister for Immigration and Citizenship [2012] FCA 531 at [31].
[3]Gacic v Minister for Immigration and Citizenship [2012] FCA 531 at [32].
[4]Migration Regulations 1994 (Cth), Sched 2 item 845.213.
The applicants apply for special leave to appeal. No question of importance respecting the application of s 360 of the Migration Act arises. Besanko J concluded that the exchange between the Tribunal member and the second applicant did not bear the complexion which the applicants seek to place upon it. The alternative basis for dismissing the applicants' appeal was well open. If special leave to appeal were granted the appeal would have insufficient prospects of success.
The application is dismissed.
Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

J.D. Heydon
26 February 2013 V.M. Bell

CaseChat Overview and Summary

Ljiljana Gacic and another person sought judicial review of a decision by the Migration Review Tribunal to deny their application for a Business Skills – Established Business (Residence) (Class BH) visa. The Federal Court of Australia dismissed their appeal, and they now sought special leave to appeal to the High Court of Australia. The sole ground of appeal was that the Tribunal had committed a jurisdictional error in failing to comply with section 360 of the Migration Act 1958 (Cth) by discouraging the second applicant from giving evidence that he satisfied the primary criteria for the grant of the visa.

The High Court considered whether the exchange between the Tribunal member and the second applicant amounted to a jurisdictional error. The Court noted that it was clear from the context of the proceedings that the first applicant was the one who sought to satisfy the primary criteria for the grant of the visa. The Court found that the second applicant had not sought to give evidence on the success of his business career, and therefore, the Tribunal's failure to allow him to do so did not amount to a jurisdictional error. The Court also found that even if the Tribunal had failed to allow the second applicant to give evidence, the Tribunal had been right to conclude that he could not satisfy the criteria for the grant of the visa.

The High Court dismissed the applicants' application for special leave to appeal. The Court found that no question of importance respecting the application of section 360 of the Migration Act arose. The Court also found that the alternative basis for dismissing the applicants' appeal was well open, and that if special leave to appeal were granted, the appeal would have insufficient prospects of success. The Court directed the Registrar to draw up, sign and seal an order dismissing the application with costs.

In summary, the High Court dismissed the applicants' application for special leave to appeal against the Federal Court's decision to dismiss their appeal against the Tribunal's refusal to grant them a Business Skills – Established Business (Residence) (Class BH) visa. The Court found that the Tribunal had not committed a jurisdictional error in failing to allow the second applicant to give evidence that he satisfied the primary criteria for the grant of the visa. The Court also found that even if the Tribunal had failed to allow the second applicant to give evidence, the Tribunal had been right to conclude that he could not satisfy the criteria for the grant of the visa.

CaseChat Overview and Summary

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Legal Principle Established