Rajak v Minister for Immigration - [2018] FCCA 3143

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAJAK v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3143

Catchwords:
MIGRATION – Partner (Temporary) (Class UK) visa application – review of Administrative Appeals Tribunal decision – whether the Tribunal erred in construing compelling reasons – whether the Tribunal decision was unreasonable – whether the Tribunal erred in failing to give proper consideration to the applicant’s arguments – no jurisdictional error – application dismissed.

PRACTICE & PROCEDURE – Leave sought to amend grounds 4 and 5 of the application – leave granted.

Legislation:

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), sub-cl.820.211(d)(ii) of sch.2, criteria 3001 of sch.3

Cases cited:

Babicci v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 285

Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 116 FCR 557

McNamara v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1096
MZYPZ v Minister for Immigration & Citizenship [2012] FCA 478

Applicant:

MAHESH RAJAK

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2198 of 2017

Judgment of:

Judge Smith

Hearing date:

9 July 2018

Date of Last Submission:

9 July 2018

Delivered at:

Sydney

Delivered on:

16 November 2018

REPRESENTATION

Counsel for the Applicant:

Mr J R Young

Solicitors for the Applicant:

Shamser Thapa & Associates

Solicitors for the Respondents:

Ms M Donald, Sparke Helmore

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2198 of 2017

MAHESH RAJAK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 21 June 2017. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a Partner (Temporary) (Class UK) subclass 820 visa.

Background

The applicant is a citizen of Nepal who arrived in Australia in June 2006 on a student visa. On 27 January 2015 he lodged an application for a partner visa. He was sponsored for the purpose of that visa by his partner, Ms Laurette Leba Ah Jack.
It was a criterion for the grant of the visa that the applicant satisfy the sch.3 criteria, and in particular that the application for the visa be made no more than 28 days after the expiry of the applicant’s last held substantive visa. That criterion could be waived if the Minister was satisfied that there were compelling reasons for not applying the criterion: sub-cl.820.211(2)(d)(ii) of sch.2 to the Migration Regulations 1994 (Cth).
On 22 June 2015, a delegate of the Minister wrote to the applicant noting that, at the time he lodged his partner visa application, he was not the holder of a substantive visa because his student visa had ceased on 8 August 2011. The delegate then noted that criterion 3001 required that the application be made within 28 days after the substantive visa ceased unless the Minister was satisfied that there…

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 3143
Decision Date: 16 November 2018

CaseChat Overview and Summary

The applicant, Mr Rajak, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) concerning his Partner (Temporary) (Class UK) visa application. The AAT had affirmed the refusal of his visa application. The matter came before Judge Smith in the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were whether the AAT had erred in its construction of the phrase "compelling reasons" in the context of the visa application, whether the AAT's decision was unreasonable, and whether the AAT had failed to give proper consideration to the arguments advanced by the applicant. The Court also considered an application by the applicant for leave to amend the grounds of his application.

Judge Smith granted leave to amend the grounds of the application. However, on the substantive issues, the Court found that the AAT had not made any jurisdictional error. The Court concluded that the AAT had properly considered the relevant criteria and the applicant's submissions, and that its interpretation of "compelling reasons" was open to it. The application for judicial review was therefore dismissed.

Orders