Raval v Minister for Immigration - [2020] FCCA 418

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAVAL & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 418

Catchwords:
MIGRATION – Application for review of decision of the Administrative Appeals Tribunal – whether the Tribunal misconstrued cl.573.223(1)(a) of the Migration Regulations 1994 (Cth) – whether the Tribunal had proper regard to Ministerial Direction No.53 made under s.499 of the Migration Act 1958 (Cth) – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 499
Migration Regulations 1994 (Cth), sch.2, cls.572.223, 573, 573.223

Cases cited:

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 357 ALR 408; (2018) 163 ALD 1
Singh v Minister for Immigration & Anor [2018] FCCA 3423
Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16

First Applicant:

VIKASKUMAR AMRUTLAL RAVAL

Second Applicant:

ROMA VIKASKUMAR RAVAL

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 73 of 2017

Judgment of:

Judge Nicholls

Hearing date:

24 February 2020

Date of Last Submission:

24 February 2020

Delivered at:

Sydney

Delivered on:

27 February 2020

REPRESENTATION

First Applicant:

In person

Second Applicant:

In person

Legal Representative for the Respondents:

Mr L. Leerdam

Solicitors for the Respondents:

Mills Oakley Lawyers

ORDERS

The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application made pursuant to s.476 of the Migration Act 1958 (Cth) on 10 January 2017 is dismissed.
The applicants pay the first respondent’s costs set in the amount of $6500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 73 of 2017

VIKASKUMAR AMRUTLAL RAVAL

First Applicant

ROMA VIKASKUMAR RAVAL

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 10 January 2017 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) which seeks review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which on 31 October 2016 affirmed the decision of the Minister’s delegate to refuse the grant of Student (Temporary) (Class TU) visas (“the visa”) to Mr and Mrs Raval.
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB” – “RE 1”).

Background

On 3 April 2015 Mr and Mrs Raval applied for Student (Temporary) (Class TU) visas (CB 1 – CB 9). Mr Raval was the principal applicant. Mrs Raval applied as a member of Mr Raval’s family. They…

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: [2020] FCCA 418
Decision Date: 27 February 2020

CaseChat Overview and Summary

The applicant, Raval, sought judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal). The dispute concerned the Tribunal's assessment of Raval's eligibility for a visa under the Migration Regulations 1994 (Cth). The matter came before Judge Nicholls of the Federal Circuit Court of Australia.

The primary legal issues before the Court were whether the Tribunal had misconstrued clause 573.223(1)(a) of the Migration Regulations 1994 (Cth) in its assessment of the applicant's case, and whether the Tribunal had given proper regard to Ministerial Direction No. 53, issued under section 499 of the Migration Act 1958 (Cth).

Judge Nicholls found that the Tribunal had not made a jurisdictional error. The Court's reasoning focused on the Tribunal's interpretation and application of the relevant regulatory provision and the Ministerial Direction. The Court concluded that the Tribunal's decision was open to it on the evidence and the applicable law.

The application for judicial review was dismissed.

Orders