Lumbini v Minister for Immigration - [2018] FCCA 1142

FEDERAL CIRCUIT COURT OF AUSTRALIA

LUMBINI & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1142

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the findings of the Administrative Appeals Tribunal were open to it – whether the Administrative Appeals Tribunal had any residual discretion in the application of cl.485.215(1) of Schedule 2 to the Migration Regulations 1994 (Cth) – whether the word “accompanied” in the context of cl.485.215(1) of the Migration Regulations 1994 (Cth) confers any temporal latitude – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.357A, 476
Migration Regulations 1994 (Cth), sch.2, cl.485.215

Cases cited:
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CR 152; [2006] HCA 63
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35
Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21
Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562; [2013] FCA 1050
Nguyen v Minister for Immigration and Border Protection (2016) 310 FLR 339; [2016] FCCA 1523
Gulati v Minister for Immigration & Citizenship [2012] FMCA 491

First Applicant:

SHREEJALA LUMBINI

Second Applicant:

TEK NATH SAPKOTA

Third Applicant:

PRAASHNAA SAPKOTA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3338 of 2016

Judgment of:

Judge Emmett

Hearing date:

8 May 2018

Date of Last Submission:

8 May 2018

Delivered at:

Sydney

Delivered on:

22 May 2018

REPRESENTATION

Solicitors for the Applicant:

Mr Kristjan Geering)
(Raddison Lawyers)

Solicitors for the Respondents:

Mr Liam Dennis
(Minter Ellison Lawyers)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3338 of 2016

SHREEJALA LUMBINI

First Applicant

TEK NATH SAPKOTA

Second Applicant

PRAASHNAA SAPKOTA
Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 3 November 2016 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made on 27 June 2016 refusing the applicants’ Skilled (Provisional) (Class VC) visas (“Skilled visa”). The Skilled visa application was lodged by the first applicant (“the Applicant”). The second and third applicants are part of the Applicant’s family unit, and their visa applications depend upon the Applicant satisfying the primary criteria for the grant of the Skilled visa.
The issue before this Court is whether the Tribunal properly construed the requirement in cl.485.215(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) and made findings that were open to it on the material and evidence before it.

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 1142
Decision Date: 22 May 2018

CaseChat Overview and Summary

In the Federal Court of Australia, Emmett J considered an application for judicial review brought by the applicant, a citizen of Nepal, against the Minister for Immigration and the Administrative Appeals Tribunal. The applicant sought a Skilled (Provisional) (Class VC) visa, which was refused by the delegate on the basis that she failed to satisfy clause 485.215 of Schedule 2 to the Regulations. This clause required evidence of adequate health insurance arrangements in Australia at the time the application was made and continuously thereafter. The Tribunal affirmed the delegate's decision, finding that while the applicant had provided evidence of ongoing health insurance, she had failed to provide such evidence at the time of application.

The applicant raised several grounds for review, alleging that the Tribunal made a jurisdictional error by failing to consider relevant evidence and refusing to give it weight, thereby reaching erroneous findings. Furthermore, the applicant contended that the Tribunal denied her natural justice by not providing proper notice regarding the health cover requirement and by failing to inform her of the potential consequences of not submitting the requested health cover. The applicant also argued that the Tribunal failed to consider the legislative intent behind the health insurance provisions.

Emmett J's reasoning focused on the Tribunal's interpretation and application of clause 485.215. The Tribunal had accepted that the applicant had adequate health insurance arrangements since the application was made, but found that the crucial failure was the absence of this evidence at the precise moment the application was lodged. The Tribunal concluded it had no discretion in this matter, despite acknowledging that the omission was due to an agent's error. The court examined whether the Tribunal's findings were affected by jurisdictional error or a denial of natural justice, particularly in relation to the notice provided to the applicant and the weight given to her evidence.

Orders

Orders of the court

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Background

Background to the litigation

The background of this matter and the Tribunal’s decision are accurately summarised in the First Respondent’s submissions as follows:“B FACTUAL BACKGROUND3. The applicant is a citizen of Nepal who applied for a Skilled (Provisional) (Class VC) visa on 15 March 2016 (CB 1). The applicant's husband and daughter were included in that application as members of the family unit (CB 43). On 27 June 2016, the delegate refused to grant the visa (CB 63) on the basis that the applicant failed to satisfy clause 485.215 of Schedule 2 to the Regulations.4. On 12 July 2016, the applicant sought review of the delegate's decision before the Tribunal (CB 78). The applicant appeared at a hearing before the Tribunal with the assistance of her representative on 25 October 2016 (CB 110). The Tribunal made its decision on 3 November 2016, affirming the decision under review (CB 125).C TRIBUNAL DECISION5. The Tribunal identified that the relevant subclass was 485 (CB 126: [2]). Among the primary criteria to be satisfied for the grant of the visa was clause 485.215. That clause provided (CB 126: [7]–[8]):1) When the application was made, it was accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance.2) The applicant has had adequate arrangements in Australia for health insurance since the time the application was made.6. The Tribunal accepted that the applicant had provided it with evidence of adequate arrangements in Australia for health insurance since the time the application was made (clause 485.215(2)) (CB 126–127: [9], [12]). However, the Tribunal found that the evidence was not provided at the time the application was made on 15 March 2016 nor in response to the letter from the Department seeking further information from the applicant on 19 May 2017 (CB 127: [12]). Accordingly, the Tribunal concluded that clause 485.215(1) was not satisfied (CB 127: [13]–[14]).7. The Tribunal acknowledged the applicant's evidence and accepted her submission that the failure to provide the evidence was a result of her agent's error (CB 126–127: [9], [11]–[12]). However, the Tribunal found that it did not have 'any discretion in this matter' (CB 127: [12]).8. For these reasons, the Tribunal found that the applicant failed to satisfy clause 485.215 of Schedule 2 to the Regulations and affirmed the decision under review (CB 126–128: [14]–[17]).” The applicants were represented by Mr Geering, solicitor. Mr Geering confirmed that the applicants relied on the following grounds:“I. The Second Respondent made a jurisdictional error by not taking into consideration relevant evidence of the applicant and/ or refusing to give weight to evidence provided by the applicant and thereby made erroneous findings and mistaken conclusion.2. The First Respondent denied a natural justice to the applicant by not giving a proper notice to the Applicant regarding Health Cover.3. The First Respondent denied natural justice to the Applicant by failing to notify the applicant the possible outcome of not submitting the requested health cover.4. The Second Respondent failed to take into account the intention behind the law relevant law applicable to the Applicant Health Insurance Cover.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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