Reddy v Minister for Immigration - [2020] FCCA 15

FEDERAL CIRCUIT COURT OF AUSTRALIA

REDDY v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 15

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – sponsor informing the Minister’s Department that the relationship had ended – applicant invited to comment by the Tribunal – applicant not responding in time – Tribunal proceeding to make its decision without affording a further opportunity to comment – whether the process followed by the Tribunal was unfair or whether the Tribunal misconstrued its powers considered – whether the Tribunal’s reasoning was irrational, whether the Tribunal failed to exercise its statutory power or whether the Tribunal misconstrued s.359A considered – jurisdictional error established – correspondence which combines an invitation to comment with a request for information where one or other is not called for does not disentitle an applicant to a hearing where no response is made within the stipulated time period.

Legislation:

Migration Act 1958 (Cth), ss.338, 359, 359A, 359B, 359C, 360, 379A, 379G
Migration Regulations 1994 (Cth)

Cases cited:

Hasran v Minister for Immigration [2010] FCAFC 40
Kaur v Minister for Immigration [2018] FCA 779
M v Minister for Immigration (2006) 155 FCR 333

Applicant:

AVINESH REDDY

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 430 of 2019

Judgment of:

Judge Driver

Hearing date:

19 December 2019

Date of Last Submission:

12 February 2020

Delivered at:

Sydney

Delivered on:

1 April 2020

REPRESENTATION

Counsel for the Applicant:

Mr G Foster

Solicitors for the Applicant:

Harish Prasad & Associates

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

Mills Oakley

ORDERS

A writ of certiorari shall issue removing the record of the Administrative Appeals Tribunal decision made on 23 January 2019 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine according to law the review application before it.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 430 of 2019

AVINESH REDDY

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant (Mr Reddy) seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 23 January 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Reddy a partner visa.
The following statement of background facts is derived from written submissions filed on behalf of the Minister on 10 December 2019.
Mr Reddy is a citizen of Fiji who on 13 May 2015 applied for a partner visa on the basis of his relationship with his sponsor, Ms Gounder. It was a requirement for the grant of the visa that at the time of decision Mr Reddy and Ms Gounder be in a spousal or de facto relationship, unless the relationship had ceased and certain circumstances existed.[1]
[1] See clause 100.221 of the Migration Regulations

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 15
Decision Date: 1 April 2020

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (AAT) to affirm the refusal of a partner visa. The applicant, Ms. Reddy, had applied for a partner visa, but her sponsor informed the Department of Immigration that the relationship had ended. The AAT subsequently invited Ms. Reddy to comment on this information, but she failed to respond within the stipulated timeframe. The AAT then proceeded to make its decision without affording her a further opportunity to comment.

The central legal issues before the Federal Circuit and Family Court of Australia were whether the AAT's process was unfair, whether the Tribunal had misconstrued its powers, and whether its reasoning was irrational. Specifically, the court considered whether the AAT had failed to exercise its statutory power or had misconstrued section 359A of the *Migration Act 1958* (Cth). The applicant argued that the Tribunal's decision to proceed without further comment from her constituted a jurisdictional error.

Judge Driver found that the correspondence from the AAT, which combined an invitation to comment with a request for information, did not disentitle the applicant to a hearing when no response was made within the stipulated time period. The court held that the Tribunal's approach was unfair and amounted to a jurisdictional error. The Tribunal had a duty to ensure procedural fairness, and its failure to provide a further opportunity for comment after the applicant's non-response to the combined invitation and request was a breach of that duty.

The court set aside the AAT's decision and remitted the matter to the AAT for redetermination according to law.

Orders