FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAGAKI v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1070 |
| Catchwords: MIGRATION – Application for a Partner (Temporary) visa – where application sponsored by a person who was precluded by the Regulations from sponsoring another person unless the limitation was waived – whether there were compelling circumstances affecting the sponsor so as to enliven the discretion to waive the relevant limitation – where tribunal found that there were no compelling circumstances affecting the sponsor – whether the tribunal did not act in a way that was fair and just. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 5CB, 357A(1), 357A(2), 357A(3), 359A, 424A(1) |
| Applicant: | YUKARI NAGAKI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 748 of 2014 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 8 April 2015 |
| Date of Last Submission: | 8 April 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 6 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Markwell (direct brief) |
| Counsel for the First Respondent: | Mr McGlade |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
The Amended Amended Application filed on 8 April, 2015 be dismissed;
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 748 of 2014
| YUKARI NAGAKI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By this application Ms Nagaki seeks orders setting aside a decision of a migration review tribunal which affirmed a decision of a delegate of the first respondent to refuse to grant to her a Partner (Temporary) (Class UK) visa. She asks that the application be remitted to another…
Continue reading Nagaki v MIBP
Sign in free to access the full text
Details
- AGLC
- Nagaki v Minister for Immigration [2016] FCCA 1070
- Case
- [2016] FCCA 1070
- Decision Date
CaseChat Overview and Summary
This matter concerned an application for review by the applicant, Mr Nagaki, against a decision of the Migration Review Tribunal (MRT). The applicant contended that the MRT's decision was affected by jurisdictional error, specifically alleging a failure to comply with subsection 357A(3) of the *Migration Act 1958* by not acting in a way that was just and fair to the applicant and the sponsor. The core of the applicant's argument was that neither he nor the sponsor were provided with clear particulars of the issues the MRT considered when forming its findings regarding potential undue financial hardship for the sponsor or adverse effects on the sponsor's relationship with his children if he were to leave Australia.
The legal issues before the court were whether the MRT had complied with its obligation under subsection 357A(3) of the *Migration Act 1958* to act in a way that was just and fair. This involved determining whether the applicant and sponsor were given a fair opportunity to address the specific issues that ultimately underpinned the MRT's adverse findings. The applicant argued that statements made by the presiding tribunal member during a video hearing, which suggested the applicant and sponsor would be alerted to any adverse issues and given an opportunity to comment, created an expectation of procedural fairness that was not met.
The court considered that the statements made by the tribunal member, assuring the applicant and sponsor that they would be contacted if any adverse issues arose and given an opportunity to comment, created a legitimate expectation of procedural fairness. The fact that the MRT did not subsequently contact the applicant or sponsor to discuss the specific issues that informed its adverse findings, particularly concerning financial hardship and family impact, meant that they were denied a reasonable opportunity to make comprehensive submissions. This failure to provide particulars of the adverse considerations and to allow for a response meant the MRT did not act in a way that was just and fair, thereby constituting a jurisdictional error.
The legal issues before the court were whether the MRT had complied with its obligation under subsection 357A(3) of the *Migration Act 1958* to act in a way that was just and fair. This involved determining whether the applicant and sponsor were given a fair opportunity to address the specific issues that ultimately underpinned the MRT's adverse findings. The applicant argued that statements made by the presiding tribunal member during a video hearing, which suggested the applicant and sponsor would be alerted to any adverse issues and given an opportunity to comment, created an expectation of procedural fairness that was not met.
The court considered that the statements made by the tribunal member, assuring the applicant and sponsor that they would be contacted if any adverse issues arose and given an opportunity to comment, created a legitimate expectation of procedural fairness. The fact that the MRT did not subsequently contact the applicant or sponsor to discuss the specific issues that informed its adverse findings, particularly concerning financial hardship and family impact, meant that they were denied a reasonable opportunity to make comprehensive submissions. This failure to provide particulars of the adverse considerations and to allow for a response meant the MRT did not act in a way that was just and fair, thereby constituting a jurisdictional error.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ground two of the Amended Amended Application for Review also has a number of distinct sub-grounds. It is convenient to deal with grounds 2(a)(i) to 2(a)(iii) together. They are in the following terms:2.Further, or in the alternative, the decision of the second respondent was affected by jurisdictional error because:a.The second respondent did not comply with subsection 357A(3) of the Migration Act 1958 as a result of failing to act in a way that was just and fair to the Applicant and sponsor by reason of the following circumstances:i. At no stage prior to delivery to the Applicant of the second respondent’s decision were the applicant or sponsor given clear or meaningful particulars of the second respondent’s consideration of [the] issues supporting the second respondent’s ultimate findings (at paragraphs 34 and 35 of the decision record) that the sponsor would not experience undue financial hardship or that the sponsor’s relationship with his children would not be adversely affected were he to leave Australia;ii. The presiding tribunal member of the second respondent making the following statements to the Applicant and sponsor towards the end of the video hearing on 3 April 2014, which statements were reasonably relied upon by the Applicant and sponsor as reassurances that they would be alerted to any issues, which had not otherwise been earlier notified to them, that the second respondent might consider to be a reason, or a part of a reason, for affirming the decision under review:-I.“When I go through everything, if there is anything that comes up I will write to you and seek comment. If I need to, if there is anything adverse that arises, I will either write to you or I will set aside a time for another hearing”;II.and minutes later “... as I said, if there is anything that I come across in the process, I... when considering the information you have provided, I will contact you”,In the circumstances, these statements further informed the Applicant’s and the sponsor’s expectations of procedural fairness in relation to the deliberations of the second respondent, yet neither the Applicant or sponsor were again contacted by the second respondent prior to the delive1y of its decision, and in particular were never alerted to the issues or information ultimately forming the second respondent’s findings referred to in paragraph 2(a)(i) above;iii. As a result of paragraphs 2(a)(i) and 2(a)(ii) above, neither the applicant or sponsor were provided a fair or reasonable opportunity to address and make more comprehensive submissions in relation to issues ultimately in forming the second respondent’s findings referred to in paragraph 2(a)(i) above. Section 357A of the Migration Act 1958 was in the following terms at the relevant time:357A Exhaustive statement of natural justice hearing rule(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.(2) Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.(3) In applying this Division, the Tribunal must act in a way that is fair and just.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.