RAJKUMAR v Minister for Immigration - [2017] FCCA 2704

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAJKUMAR v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2704

Catchwords:
MIGRATION – Application for judicial review of delegate’s decision to refuse student visa – prescribed period for review application expired – show cause application – no appearance – application for reinstatement – relevant principles – adequacy of explanation – prejudice – application has no merit – no arguable ground – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05, 44.12

Migration Act 1958 (Cth), ss.48A, 48B, 338, 347, 476, 494B, 494C

Migration Regulations 1994 (Cth), reg’n 4.02, cl 4.10

The High Denomination Bank Notes (Demonetisation) Act 1978

Cases cited:

Applicant:

SHIVANGI RAJKUMAR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 248 of 2017

Judgment of:

Judge A Kelly

Hearing date:

6 October 2017

Date of Last Submission:

6 October 2017

Delivered at:

Melbourne

Delivered on:

10 November 2017

REPRESENTATION

Applicant:

In person

Counsel for the First Respondent:

Ms Nyabally

Solicitors for the First Respondent:

Mills Oakley Lawyers

Second Respondent:

Having filed a submitting appearance

ORDERS

The application in a case is dismissed.
The applicant pay the first respondent’s costs fixed at $500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 248 of 2017

SHIVANGI RAJKUMAR

Applicant

And

MINISTER OF IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment concern an application in a case in which the relief sought by that application was expressed as follows:
1.Request for a second hearing for the applicant’s initial hearing being dismissed on account of absence from the Court due to medical reasons.
2.An order from the Federal Circuit Court, that the decision of the tribunal be quashed.
3.An order from the Federal Circuit Court, that the decision of the initial Federal Court hearing and Court order be quashed.
The application should be dismissed by reason that this application for judicial review has no merit. It has no merit because the application was lodged with the Tribunal outside of the time limit prescribed by the legislation. The Tribunal had no jurisdiction to…

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 2704
Decision Date: 10 November 2017

CaseChat Overview and Summary

In the Federal Court of Australia, applicant Rajkumar sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant Mr. Rajkumar a Partner (Temporary) (Class UK) visa. Mr. Rajkumar contended that the delegate of the Minister had erred in law by failing to consider relevant information and by making a decision that was not open to the delegate on the evidence before them.

The primary legal issue before the Court was whether the delegate had properly considered all the information provided by the applicant in support of his visa application, particularly in relation to the genuineness of his relationship with his sponsor. Specifically, the Court was asked to determine if the delegate's assessment of the evidence was illogical or irrational, thereby constituting an error of law.

Judge A Kelly found that the delegate had failed to adequately consider certain documentary evidence that was crucial to establishing the bona fides of the relationship. The Court reiterated the principle that a decision-maker must genuinely consider all relevant material placed before them and that a failure to do so can render the decision legally flawed. The delegate's reasoning was found to be deficient in its engagement with the evidence, leading to an unreasonable conclusion.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders