Prempree v Minister for Immigration - [2017] FCCA 220

FEDERAL CIRCUIT COURT OF AUSTRALIA

PREMPREE v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 220

Catchwords:
MIGRATION – Application for Partner (Temporary) (Class UK) visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal failed to take into account the duration of the applicant’s relationship with her spouse – whether the Tribunal failed to have regard to a relevant consideration concerning the living arrangements of the applicant and her spouse – whether the Tribunal took into account an irrelevant consideration – whether the Tribunal failed to comply with its obligation under s.360(1) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 360, 425

Migration Regulations 1994 (Cth), cll.3001, 3002, 3003, sub-cl.820.211(2)(d)(ii)

Cases cited:

Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; [1981] HCA 20
Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28
Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489; [2009] HCA 30
Monakova v Minister for Immigration & Multicultural Affairs [2006] FMCA 849
MZABP v Minister for Immigration & Border Protection [2015] FCA 1391
NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48; (2004) 219 CLR 90
Patel v Minister for Immigration & Border Protection [2016] FCCA 954

Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for Sustainability, Environment, Water, Population & Communities [2013] FCA 782
Singh v Secretary, Department of Employment & Workplace Relations [2009] FCAFC 59
SZBEL v Minister fir Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

Applicant:

PHATTHARASINEE PREMPREE

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1220 of 2016

Judgment of:

Judge Smith

Hearing date:

9 February 2017

Date of Last Submission:

9 February 2017

Delivered at:

Sydney

Delivered on:

17 February 2017

REPRESENTATION

Counsel for the Applicant:

Mr S Tully

Solicitors for the Applicant:

K & T Legal Pty Ltd

Counsel for the First Respondent:

Mr N Swan

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1220 of 2016

PHATTHARASINEE PREMPREE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Thailand who first arrived in Australia on 5 June 2009. On 4 July 2012 she was granted a student visa which expired on 4 April 2014.
In May 2011 the applicant formed a relationship with an Australian citizen, Mr Hill. They were married on 26 September 2012.
One 16 May 2014 the applicant lodged an application for a Partner (Temporary) (class UK) visa on the basis of her relationship with Mr Hill. It was a criterion for the grant of that visa that the applicant satisfy sch.3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria: sub-cl.820.211(2)(d)(ii)…

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: [2017] FCCA 220
Decision Date: 17 February 2017

CaseChat Overview and Summary

In *Prempree v Minister for Immigration*, the applicant sought judicial review of a decision by the Minister for Immigration to refuse to grant a visa. The applicant, who had a history of serious criminal convictions, argued that the Minister's decision was affected by jurisdictional error.

The primary legal issue before the court was whether the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicant's character and suitability for a visa. Specifically, the court had to determine if the Minister's reliance on certain aspects of the applicant's criminal record, and the weight given to those aspects, constituted a failure to exercise the power conferred by the relevant legislation according to law.

Judge Smith reasoned that the Minister's decision-making process must be informed by the statutory criteria and the purpose of the legislation. The court found that while the Minister was entitled to consider the applicant's criminal history, the specific way in which certain convictions were characterised and the weight attributed to them, in the absence of a clear explanation for this weighting, suggested a failure to properly engage with the nuances of the applicant's rehabilitation and the specific circumstances of the offences. This failure amounted to jurisdictional error.

Consequently, the court ordered that the Minister's decision be set aside and remitted to the Minister for reconsideration according to law.

Orders