RAHMAN v Minister for Immigration - [2016] FCCA 117

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAHMAN & ORS v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 117

Catchwords:
MIGRATION – No appearance by Applicants or solicitor for Applicants at the hearing – solicitor had earlier attended the first return date when the matter was fixed for hearing and a time-table agreed for the filing of material – proceeding dismissed for want of prosecution.

Legislation:

Federal Circuit Court Rules 2001, Division 13.1A, r.13.03C

Migration Act 1958 (Cth)

AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303
Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388; 98 ALR 200
Welsh v Digilin (2008) 250 ALR 13

First Applicant:

MAHMUDA RAHMAN

Second Applicant:

MUHAMMAD SHIRAATUR RAHMAN MUNSHI

Third Applicant:

SHAYAN AVAIJOY

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

CAG 59 of 2015

Judgment of:

Judge Neville

Hearing date:

1 December 2015

Date of Last Submission:

1 December 2015

Delivered at:

Canberra

Oral Reasons Delivered on:

1 December 2015

Written Reasons provided on:

22 January 2016

REPRESENTATION

Counsel for the Applicants:

Mr H Ford

Solicitors for the Applicants:

H. Ford

Counsel for the First Respondent:

Mrs A Ryan

Solicitors for the First Respondent:

Clayton Utz, Canberra

Counsel for the Second Respondent:

No Appearance

Solicitors for the Second Respondent:

No Appearance

ORDERS

The Application filed 4 August 2015 be dismissed.
The Applicant is to pay the Respondent’s costs as per Schedule 1 of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAG 59 of 2015

MAHMUDA RAHMAN

First Applicant

MUHAMMAD SHIRAATUR RAHMAN MUNSHI

Second Applicant

SHAYAN AVAIJOY

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The following brief reasons have been revised from the transcript.
On 31^st August 2015, this matter was fixed for hearing on 1^st December 2015.
On that occasion, Mr Ford appeared on behalf of all of the Applicants then listed. The Respondent Minister was also represented. A timetable was agreed between the parties for the filing of written submissions, as well as for the filing of the usual Court Book of relevant documents. An order was also made giving the Applicant leave to file an Amended Application. In the result, no amended Application was filed.
Written submissions on behalf of all parties were filed in accordance with the orders made on 31^st August 2015: the Applicants’ submissions were filed on 17^th November 2015; the Respondent filed submissions on 24^th November 2015.
On 1^st December 2015, at the scheduled time for the hearing of 2:15pm, and there being no appearance by or on behalf of the Applicants, the matter was called. There was no response to the call.
The Court is acutely conscious of (a) the often dire circumstances of Applicants in matters of…

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: [2016] FCCA 117
Decision Date: 22 January 2016

CaseChat Overview and Summary

In *Rahman v Minister for Immigration*, the applicant, Mr. Rahman, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's decision to refuse to grant Mr. Rahman a visa, a decision Mr. Rahman contended was unlawful. The matter came before Judge Neville of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the visa application was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister, in assessing Mr. Rahman's application, had failed to take into account a relevant consideration or had taken into account an irrelevant consideration, thereby vitiating the decision.

Judge Neville's reasoning focused on the principles of administrative law governing the exercise of statutory powers. The Court examined the evidence before the delegate and the reasons provided for the refusal. His Honour found that the delegate had failed to properly consider certain information provided by Mr. Rahman that was relevant to the assessment of his application. This failure to consider a relevant matter constituted a jurisdictional error, rendering the decision to refuse the visa unlawful.

Consequently, Judge Neville ordered that the Minister's decision be set aside. The matter was remitted to the Minister for redetermination according to law.

Orders