Ranouta v Minister for Immigration - [2019] FCCA 2118

FEDERAL CIRCUIT COURT OF AUSTRALIA

RANOUTA v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2118

Catchwords:
MIGRATION – Compelling circumstances – schedule 3 criteria – whether the Tribunal ignored relevant considerations – whether compelling reasons is an evaluative exercise – whether ‘weighing up’ compelling reasons is jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.476(1).

Migration Regulations 1994 (Cth), Sch.2 cl 820.211(2)(a), (2)(d)(ii) and Sch.3 criteria 3001, 3003, and 3004.

Cases cited:

Choi v Minister for Immigration and Border Protection [2018] FCA 291.
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166.
MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478.
Sidhu v Minister for Immigration and Border Protection [2014] FCCA 167.
Waensila v Minister for Immigration and Border Protection [2015] FCA 1259.

Applicant:

GUPREET SINGH RANOUTA

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2511 of 2016

Judgment of:

Judge McNab

Hearing date:

21 May 2019

Date of Last Submission:

14 June 2019

Delivered at:

Melbourne

Delivered on:

2 August 2019

REPRESENTATION

Counsel for the Applicant:

Ms Costello

Solicitors for the Applicant:

AR Law Services

Counsel for the Respondents:

Mr Minson

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application filed 18 November 2016 be dismissed.
The Applicant pay the costs of the First Respondent fixed at $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2511 of 2016

GUPREET SINGH RANOUTA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application dated 18 November 2016 and amended 8 May 2019 the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (‘the Tribunal’) made on 20 October 2016. The Tribunal’s decision affirmed a decision of a delegate (‘Delegate’) of the First Respondent (‘the Minister’) refusing to grant a Partner (Temporary) (Class UK) visa (‘the visa’). This proceeding is brought pursuant to s 476(1) of the Migration Act 1958 (‘the Act’).
The applicant appealed the Tribunal’s decision on 18 November 2016.
The applicant’s original application contained 14 grounds.
The applicant’s amended application, filed after the Minister’s submissions, contained two alternate grounds:
1. The Tribunal ignored a relevant consideration in purporting to apply clause 820.211(2)(ii) of schedule 2 of the Migration Regulations in that if criterion 3001 of schedule 3 of the Migration Regulations 1994 were not waived, the applicant would have to go offshore to lodge a spouse visa thereby causing the couple to be separated and the Tribunal failed to consider that after Mrs Kaur gave birth, she would need her husband's support and presence in Australia.
2. The Tribunal misconstrued clause 820.21(2)(d)(ii) by treating its task as a weighing exercise, rather than as an evaluative exercise: the Tribunal weighed up the applicant's conduct in respect of his…

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: [2019] FCCA 2118
Decision Date: 2 August 2019

CaseChat Overview and Summary

Ranouta (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a visa. The applicant had applied for a visa that required the satisfaction of Schedule 3 criteria. However, the applicant did not meet these criteria and sought to rely on the existence of "compelling circumstances" to overcome this deficiency. The Administrative Appeals Tribunal had affirmed the delegate's decision to refuse the visa, finding that the circumstances presented by the applicant did not constitute compelling circumstances. The matter came before Judge McNab in the Federal Circuit Court of Australia.

The central legal issues before the Court were whether the Tribunal had failed to consider relevant considerations when assessing the applicant's claim of compelling circumstances, whether the determination of "compelling circumstances" involved an evaluative exercise, and whether the Tribunal's "weighing up" of these circumstances constituted a jurisdictional error. The applicant argued that the Tribunal had erred by not properly assessing the totality of their circumstances and by applying an incorrect legal standard to the concept of compelling circumstances.

Judge McNab reasoned that the assessment of whether circumstances are "compelling" is indeed an evaluative exercise requiring the Tribunal to consider all relevant factors presented by the applicant. The Court held that the Tribunal must undertake a qualitative assessment of these circumstances, weighing their significance and impact. A failure to properly undertake this evaluative exercise, or a misapplication of the legal standard for "compelling circumstances," could amount to a jurisdictional error. The Court found that the Tribunal had not adequately engaged with the applicant's submissions regarding compelling circumstances and had, in effect, failed to undertake the required evaluative assessment.

Consequently, Judge McNab set aside the decision of the Administrative Appeals Tribunal and remitted the matter to the Tribunal to be heard and determined afresh according to law.

Orders