Patel v Minister for Immigration - [2020] FCCA 360

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL & ORS v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 360

Catchwords:
MIGRATION – Application for judicial review – Temporary Business Entry (Class UC) (Subclass 457) Visa – jurisdictional error – applicants failed to attend Administrative Appeals Tribunal hearing and application was dismissed – application in a case for summary dismissal – reasonable prospects of success of application – application summarily dismissed – costs.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.17A
Federal Circuit Court Rules 2001 (Cth), r.13.10
Migration Act 1958 (Cth), ss.360, 360A, 362B, 362C, 379C
Migration Regulations 1994 (Cth), rr.457.223(4)(a), 457.321

Cases cited:

Assal v Department of Health, Housing & Community Services [1992] EOC 92-409
Dey v Victorian Railway Commissioners (1949) 78 CLR 62
Ebber v Human Rights & Equal Opportunity Commission (1995) 129 ALR 455
McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 400
Morton v Mitchell Products [1996] FCA 828
Paramasivam v Wheeler & Ors [2000] FCA 1559
Travers v New South Wales [2000] FCA 1565
Webster v Lampard (1993) 177 CLR 598

First Applicant:

SUNAINA RAKESH PATEL

Second Applicant:

RAKESH MADHUSUDAN PATEL

Third Applicant:

SAUMYA RAKESH PATEL

Fourth Applicant:

HARVISHI RAKESH PATEL

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 193 of 2018

Judgment of:

Judge Brown

Hearing date:

10 February 2020

Date of Last Submission:

10 February 2020

Delivered at:

Adelaide

Delivered on:

26 February 2020

REPRESENTATION

Counsel for the Applicants:

In person

Solicitors for the Applicants:

N/A

Counsel for the Respondents:

Natalia Milutinovic

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The name of the First Respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.”
The application for judicial review filed 18 May 2018 is dismissed pursuant to the provisions of rule 13.10 of the Federal Circuit Court Rules 2001 and section 17A of the Federal Circuit Court of Australia Act 1999.
The Applicants pay the First Respondent’s costs in the sum of five thousand two hundred dollars ($5,200.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 193 of 2018

SUNAINA RAKESH PATEL

First Applicant

RAKESH MADHUSUDAN PATEL

Second Applicant

SAUMYA RAKESH PATEL

Third Applicant

HARVISHI RAKESH PATEL

Fourth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Applicant

REASONS FOR JUDGMENT

Introduction

These proceedings concern an application, made by the respondent, for summary dismissal of the applicants’ claim for judicial review of a decision made by the Administrative Appeals Tribunal[1] on 23 April 2018.
[1] Hereinafter referred to as the Tribunal
I should point out that it is not the function of this court to determine the applicant’s claim for the Temporary Business Entry (Class UC) (Subclass 457) Visa (the Visa). Rather, the task for the court is to examine whether the AAT correctly applied the legislative provisions applicable to the applicant’s non-appearance and properly exercised the jurisdiction conferred upon it to dismiss their application.

Background

The applicants…

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 360
Decision Date: 26 February 2020

CaseChat Overview and Summary

This matter concerned an application for judicial review brought by the applicants, Mr Patel and others, against the Minister for Immigration. The applicants sought to challenge a decision that had led to the dismissal of their application for a Temporary Business Entry (Class UC) (Subclass 457) Visa. The core of the dispute revolved around the applicants' failure to attend a hearing before the Administrative Appeals Tribunal, which resulted in their application being dismissed. The Minister sought summary dismissal of the judicial review application.

The central legal issue before the Federal Court was whether the applicants' application for judicial review had reasonable prospects of success. This required the Court to consider whether any jurisdictional error had occurred in the process leading to the dismissal of their visa application by the Tribunal. The Court also had to determine whether the Minister's application for summary dismissal should be granted.

Justice Brown reasoned that the applicants had not demonstrated any arguable case of jurisdictional error. The failure to attend the Tribunal hearing, without a sufficient explanation or application for adjournment, meant that the Tribunal was entitled to proceed with the matter and dismiss the application. Consequently, the Court found that the judicial review application lacked reasonable prospects of success.

Accordingly, the Court ordered the summary dismissal of the applicants' application for judicial review and ordered the applicants to pay the Minister's costs.

Orders