Pandya v Minister for Immigration - [2020] FCCA 99

FEDERAL CIRCUIT COURT OF AUSTRALIA

PANDYA & ORS v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 99

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of an employment visa – applicant ineligible for the visa as he lacked an approved sponsor – show cause application bound to fail – applicant claiming inability to attend Court due to psychological illness – interlocutory termination of proceedings.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.359, 359C, 360, 363A
Migration Regulations 1994 (Cth)

Cases cited:

Basnet v Minister for Home Affairs & Anor [2019] FCCA 3046
Hasran v Minister for Immigration [2010] FCAFC 40
Singh v Minister for Immigration [2017] FCAFC 67
SZBYR v Minister for Immigration (2007) 81 ALJR 1190

First Applicant:

SANDIP DILIPBHAI PANDYA

Second Applicant:

KRUTI SANDIP PANDYA

Third Applicant:

DIVIT PANDYA

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1457 of 2019

Judgment of:

Judge Driver

Hearing date:

20 January 2020

Delivered at:

Sydney

Delivered on:

20 January 2020

REPRESENTATION

The Second Applicant appeared by telephone

Solicitors for the Respondents:

Ms M Perotti of Sparke Helmore

INTERLOCUTORY ORDERS

The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Court confirms that, for the purposes of Part 11 of the Federal Circuit Court Rules 2001 (Cth), the second applicant is appointed as litigation guardian of the third applicant, and the second applicant is relieved of the obligation of filing an affidavit of consent or of notifying the first respondent of her appointment.
On condition that the applicants file a Notice of Discontinuance no later than 5.00pm on 31 January 2020, the application will be discontinued with no order as to costs.
If no Notice of Discontinuance is filed in accordance with Order 3, the application will be dismissed with effect from 31 January 2020 by virtue of these orders, with the first and second applicant to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1457 of 2019

SANDIP DILIPBHAI PANDYA

First Applicant

KRUTI SANDIP PANDYA

Second Applicant

DIVIT PANDYA

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

I have before me an application lodged on 14 June 2019 seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 17 May 2019. The Tribunal affirmed decisions of a delegate of the Minister (delegate) not to grant the applicants regional employer nomination permanent visas. There are three applicants, who are a husband (Mr Pandya), his wife (Mrs Pandya), and their infant child, Divit Pandya. The second applicant, Mrs Pandya, was, by consent,…

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: [2020] FCCA 99
Decision Date: 20 January 2020

CaseChat Overview and Summary

Pandya (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse an employment visa. The applicant contended that he was ineligible for the visa because he lacked an approved sponsor, and that a subsequent "show cause" application he made was therefore bound to fail. The applicant also claimed he was unable to attend court proceedings due to a psychological illness. The matter came before Driver J in the Federal Court of Australia.

The primary legal issue before the Court was whether the applicant's claim of psychological illness prevented him from attending court and, if so, what the consequences of that inability were for the ongoing proceedings. This involved considering the Court's power to manage its own processes and the potential for interlocutory termination of proceedings in such circumstances.

Driver J found that the applicant's psychological illness rendered him unable to attend court. Consequently, the Court determined that it was appropriate to make an order terminating the proceedings interlocutorily. This outcome reflected the Court's assessment of the practical realities of the applicant's condition and its impact on his ability to participate in the judicial review process.

Orders