Patheja v Minister for Immigration - [2018] FCCA 3324

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATHEJA v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3324

Catchwords:
MIGRATION – Work visa application refused by delegate – no approved sponsorship nomination – Tribunal finds it has no jurisdiction to review delegate’s decision – judicial review – show cause hearing – application to adjourn hearing – medical certificate provided – hearing adjourned – applicant files notice of discontinuance – leave not granted – no jurisdictional error – Tribunal entitled to determine whether its jurisdiction was engaged – no reasonable chance of success for applicant’s grounds for review – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Act 1958 (Cth), ss.140E, 140GB, 338, 347, 348, 411, 412, 476

Migration Regulations 1994 (Cth), reg.4.02, Sch.2 cl.457.223

Cases cited:

Ahmadv Minister for Immigration and Border Protection [2015] FCCA 2013

Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182

Al Hamid v Minister for Immigration and Border Protection [2017] FCA 1256

Commonwealth of Australia v Lyon (2003) 133 FCR 265

Dyankov v Minister for Immigration and Border Protection [2017] FCAFC 81

Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30

Kandel v Minister for Immigration and Border Protection [2015] FCCA 2013

Minister for Immigration and Border Protection v Singh (2002) 209 CLR 533

MZAJQ v Minister for Immigration & Border Protection [2015] FCCA 593

Nichol v Discovery Africa Limited [2016] FCAFC 182

Parisienne Basket Shoes Pty Ltd v Whyte (1938) 58 CLR 369

Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia (2003)

128 FCR 507

Plaintiff M 64/2015 v Minister for Immigration and Border Protection [2015]

HCA 50

Siddique v Minister for Immigration and Border Protection [2014] FCA 1352

Spencer v The Commonwealth (2010) 241 CLR 118

SZTTW v Minister for Immigration and Border Protection [2014] FCA 837

SZUTB v Minister for Immigration & Border Protection (2015) 298 FLR 6

Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158

Applicant:

OM PATHEJA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 697 of 2017

Judgment of:

Judge A Kelly

Hearing date:

14 November 2018

Date of Last Submission:

14 November 2018

Delivered at:

Melbourne

Orders Pronounced:

14 November 2018

Delivered on:

21 November 2018

REPRESENTATION

The Applicant:

In person

Solicitor for the Respondents:

Mr Murano

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application filed on 7 April 2017 be dismissed.
The applicant pay the costs of the first respondent, including reserved costs, fixed at $4,737.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 697 of 2017

OM PATHEJA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed on 7 April 2017, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 14 March 2017 that it did not have jurisdiction to review a decision of a delegate of the first respondent (Minister) not to grant the applicant a…

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 3324
Decision Date: 21 November 2018

CaseChat Overview and Summary

The applicant, Mr. Patheja, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which found it lacked jurisdiction to review the refusal of his work visa application by a delegate of the Minister for Immigration. The delegate's refusal was based on the absence of an approved sponsorship nomination.

The central legal issue before the Federal Circuit and Family Court of Australia was whether the Tribunal had erred in law by determining it had no jurisdiction to consider Mr. Patheja's application for review. This involved assessing whether the Tribunal was entitled to make a preliminary finding on its own jurisdiction before proceeding to the merits of the application.

Judge A Kelly reasoned that the Tribunal was indeed entitled to determine whether its jurisdiction was engaged. The applicant had provided a medical certificate leading to an adjournment of a show cause hearing, after which he filed a notice of discontinuance. However, leave to discontinue was not granted. The Court found that the applicant's grounds for review had no reasonable prospect of success, and therefore, there was no jurisdictional error on the part of the Tribunal. The application for judicial review was dismissed.

Orders