Pabbi v Minister for Home Affairs - [2019] FCCA 1750

FEDERAL CIRCUIT COURT OF AUSTRALIA

PABBI & ANOR v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 1750

Catchwords:
MIGRATION – Temporary Graduate (Class VC) (Subclass 485) visa – review of a decision of the Administrative Appeals Tribunal – where applicants failed to provide evidence of English language test prior to filing visa application – where the Tribunal has no discretion – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), pt.5, div.5, ss.360, 474, 476

Migration Regulations 1994 (Cth), sch.2, cl.485.212

Cases cited:

Minister for Immigration & Citizenship v SZNVW (2010) 183 FCR 575

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
VAF v Minister for Immigration &Multicultural & Indigenous Affairs (2004) 236 FCR 549

First Applicant:

GAGANDEEP KAUR PABBI

Second Applicant:

BHUPINDER SINGH VIRK

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 387 of 2018

Judgment of:

Judge Kendall

Hearing date:

24 June 2019

Date of Last Submission:

24 June 2019

Delivered at:

Perth

Orders Pronounced:

24 June 2019

Delivered on:

25 June 2019

REPRESENTATION

First Applicant:

In person

Second Applicant:

In person

Counsel for the First Respondent:

Ms S Anicic

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.
Formal written reasons for judgment be published by Chambers at a later date.
The first and second applicants pay the first respondent’s costs in the sum of $4,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 387 of 2018

GAGANDEEP KAUR PABBI

First Applicant

BHUPINDER SINGH VIRK

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

On 24 June 2019, this application for judicial review under the Migration Act 1958 (Cth) (the “Act”) was heard by this Court.
Having heard the parties, the Court ordered that:
1. The application be dismissed.
2. Formal written reasons for judgment be published by Chambers at a later date.
3. The first and second applicants pay the first respondent’s costs in the sum of $4,500.
What follows are the formal written Reasons for Judgment referred to in order 2 of the orders made by this Court…

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: [2019] FCCA 1750
Decision Date: 25 June 2019

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision made by the Administrative Appeals Tribunal (AAT) regarding the refusal of a Temporary Graduate (Class VC) (Subclass 485) visa. The applicants, Mr. and Mrs. Pabbi, sought to challenge the AAT's decision to affirm the delegate's refusal of their visa applications.

The central legal issue before the Federal Court was whether the AAT had made a jurisdictional error in its review of the visa refusal. Specifically, the Court was required to determine if the AAT possessed any discretion to overlook the applicants' failure to provide evidence of an English language test prior to the lodgement of their visa applications, as required by the relevant migration regulations.

Justice Kendall found that the legislative framework governing the Temporary Graduate visa did not grant the AAT any discretion to waive the requirement for evidence of an English language test at the time of application. The Court held that the AAT's role was to assess whether the applicants met the prescribed criteria, and as they had failed to do so, the AAT was bound to affirm the delegate's decision. Consequently, the Court concluded that no jurisdictional error had occurred. The application for judicial review was dismissed.

Orders