Legal Research
Cases
Rahbarinejad v MIBP

Rahbarinejad v MIBP

Case [2018] FCCA 2293 14 August 2018

Statutory Construction

Administrative Law

Immigration

Statutory Interpretation

Type to search within this case.

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAHBARINEJAD & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2293

Catchwords:
MIGRATION – Business skills (residence) (class DF) visa – state or territory sponsored business owner residence – tribunal failed to investigate totality of the factual scenario presented to it – tribunal found no evidence that applicants’ business or businesses were operating in the two years prior to the visa application – tribunal could have drawn inferences from evidence before it – failure to consider a relevant consideration – tribunal focussed unduly on the lack of a business activity statement for a given period – jurisdictional error – constitutional writs issued.

Legislation:

Migration Act 1958, s 134(10)
Migration Regulations 1994, regs 1.03, 1.11(1), sch 2, cls 892.211, 892.212(b), 892.214, 892.221

Cases cited:
Bradshaw v McEwans Pty Ltd [1951] HCA 480
Craig v State of South Australia (1995) 184 CLR 163
Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155

Lithgow City Council v Jackson (2011) 244 CLR 352

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Nassif v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 448
WZATH v Minister for Immigration and Border Protection [2014] FCA 969

First Applicant:

GHOLAMREZA RAHBARINEJAD

Second Applicant:

ZAHRA BAHEJAB

Third Applicant:

YASAMAN RAHBARINEJAB

Fourth Applicant:

YASIN RAHBARINEJAD

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 321 of 2017

Judgment of:

His Honour Judge Wilson

Hearing date:

14 May 2018

Date of Last Submission:

14 May 2018

Delivered at:

Melbourne

Delivered on:

14 August 2018

REPRESENTATION

First Applicant:

In person

Solicitors for the First Applicant:

None

Second Applicant:

In person

Solicitors for the Second Applicant:

None

Third Applicant:

In person

Solicitors for the Third Applicant:

None

Fourth Applicant:

By his litigation guardian the first applicant

Solicitors for the Fourth Applicant:

None

Counsel for the First Respondent:

Mr A P Yuile

Solicitors for the First Respondent:

Sparke Helmore

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Sparke Helmore

ORDERS

A writ in the nature of certiorari issue quashing the decision of the second respondent made on 24 May 2017 (bearing AAT reference 1603906).
A writ in the nature of prohibition issue restraining the first respondent, by himself, his officers, employees, delegates or agents, from acting upon or giving effect to the decision made by the second respondent on 24 May 2017.
A writ in the nature of mandamus issue requiring the second respondent to reconsider and determine according to law the applicants’ application made to it for review of the decision of the delegate of the first respondent.
The first respondent pay the applicants’ costs of the proceeding as agreed or taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

PEG 321 of 2017

GHOLAMREZA RAHBARINEJAD

First Applicant

And

ZAHRA BAHEJAB

Second Applicant

And

YASAMAN RAHBARINEJAB

Third Applicant

And

YASIN RAHBARINEJAD

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second…

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.

Continue reading Rahbarinejad v MIBP

Details

AGLC: Rahbarinejad v Minister for Immigration [2018] FCCA 2293
Case: [2018] FCCA 2293
Decision Date: 14 August 2018

CaseChat Overview and Summary

Rahbarinejad and another applicant sought judicial review of a decision by the Migration Review Tribunal (MRT) that affirmed the refusal of their Business Skills (residence) (class DF) visa. The applicants were seeking a state or territory sponsored business owner residence visa. The MRT had found that there was no evidence that the applicants' business or businesses were operating in the two years prior to their visa application.

The primary legal issue before the Federal Circuit Court was whether the MRT had committed jurisdictional error by failing to adequately investigate the totality of the factual scenario presented to it. Specifically, the court considered whether the MRT had unduly focused on the absence of a business activity statement for a particular period and failed to consider other evidence from which it could have drawn inferences about the operation of the applicants' businesses.

His Honour Judge Wilson found that the MRT had indeed committed jurisdictional error. The Tribunal had failed to consider a relevant consideration by not drawing inferences from the evidence before it, which included financial statements and other documents that could have indicated business operations. The court held that the MRT's focus on the lack of a specific document (the business activity statement) was an error of law, as it prevented a proper consideration of the overall factual matrix.

Consequently, the court issued constitutional writs, quashing the decision of the Migration Review Tribunal and remitting the matter to the MRT for redetermination according to law.

Orders