Sadruga v Minister for Home Affairs

Case [2019] FCA 1078

FEDERAL COURT OF AUSTRALIA

Sadruga v Minister for Home Affairs [2019] FCA 1078

Review of: Application for judicial review of the AAT decision made on 14 January 2018
File number(s): VID 54 of 2019
Judge(s): O'BRYAN J
Date of judgment: 12 July 2019
Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming delegate of the Minister’s decision refusing to grant partner visa under section 501(1) Migration Act 1958 (Cth) – where applicant did not pass character test under section 501(6) Migration Act 1958 (Cth) – application dismissed
Legislation: Migration Act 1958 (Cth)
Date of hearing: 26 June 2019
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 37
Counsel for the Applicant: The Applicant appeared in person
Counsel for the First Respondent: Mr W Mosley
Solicitor for the First Respondent: Clayton Utz
Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

ORDERS

VID 54 of 2019
BETWEEN:

PITA RATABUA SADRUGA

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

O'BRYAN J

DATE OF ORDER:

12 JULY 2019

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent’s costs of the application.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

  1. By the application filed on 30 January 2019, the applicant (Mr Sadruga) seeks judicial review of a decision of the second respondent (Tribunal) made on 14 January 2018. By that decision, the Tribunal affirmed a decision made by a delegate of the Minister on 22 October 2018 pursuant to s 501(1) of the Migration Act 1958 (Cth) (the Act) refusing to grant Mr Sadruga a Partner (Temporary) (Class UK) visa (the visa).

  2. By his application, Mr Sadruga seeks orders quashing the decision of both the Minister and the Tribunal. Section 476A(1) of the Act gives the Court jurisdiction to review certain types of migration decisions. Relevantly, s 476A(1)(b) gives the Court jurisdiction to review the decision of the Tribunal in the present matter and s 476A(2) stipulates that the Court’s jurisdiction is the same as the jurisdiction of the High Court under s 75(v) of the Constitution. However, s 476A(1) does not confer jurisdiction on the Court to review the original decision of the Minister (to the extent it remains operative following the decision of the Tribunal to affirm it). I therefore dismiss the application in so far as it seeks a review the Minister’s decision.

  3. Mr Sadruga was not legally represented before the Tribunal or before the Court on this application.  At the hearing, Mr Sadruga appeared by video link from a courtroom in the Sydney Registry of the Court and made submissions.  I have given careful consideration to the reasons of the Tribunal and the submissions made by Mr Sadruga on this application.  For…

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Sadruga v Minister for Home Affairs [2019] FCA 1078
Case
[2019] FCA 1078
Decision Date

CaseChat Overview and Summary

Sadruga v Minister for Home Affairs involved an application for judicial review of a decision made by the Administrative Appeals Tribunal (AAT). The AAT had affirmed the delegate of the Minister for Home Affairs' decision to refuse Mr Sadruga's partner visa application under section 501(1) of the Migration Act 1958 (Cth). The primary issue before the court was whether the AAT erred in its decision-making process, particularly regarding the consideration of relevant factors in denying Mr Sadruga's visa application. Given Mr Sadruga's extensive history of unlawful entry and multiple criminal convictions, the court had to assess if the AAT had adequately taken into account all relevant considerations.

The court found that the AAT had appropriately considered all pertinent factors in making its decision. The judge reviewed the AAT's reasons and concluded that Mr Sadruga's arguments regarding the Tribunal's consideration of relevant matters were unfounded. The court determined that the AAT's decision was correct and that Mr Sadruga's application for judicial review did not reveal any error in the Tribunal's reasoning. As a result, the application was dismissed.

In dismissing the application, the court also ordered Mr Sadruga to pay the Minister's costs. This decision underscored the court's view that the AAT had acted appropriately in its assessment of the visa application, and Mr Sadruga's grounds for appeal were not substantiated. The judge's ruling emphasized the importance of adhering to the legal criteria set out in the Migration Act, particularly the character test under section 501(6).

The final orders of the court included dismissing the application and directing Mr Sadruga to pay the Minister's costs. This outcome affirmed the AAT's decision and highlighted the need for applicants to meet the stringent requirements of the Migration Act.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the first respondent’s costs of the application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Mr Sadruga was not legally represented before the Tribunal or before the Court on this application. At the hearing, Mr Sadruga appeared by video link from a courtroom in the Sydney Registry of the Court and made submissions. I have given careful consideration to the reasons of the Tribunal and the submissions made by Mr Sadruga on this application. For the reasons that follow, I dismiss the application.Factual Background Mr Sadruga is a citizen of Fiji. He first arrived in Australia on 4 July 1990 without a visa as a stowaway. He was detained the following day but escaped from immigration detention on 22 July 1990. On 28 August 1992, he was detained by NSW police and deported to Fiji. On 11 February 1996, Mr Sadruga re-entered Australia as the holder of a UC-456 Business (Short Stay) (Class UC) visa, which was valid for one month. A further short stay visa was granted until 7 May 1996. An application for another short-stay visa was unsuccessful and Mr Sadruga thereafter remained unlawfully in Australia until 2 November 2001. On that date, he applied for a protection visa, which was refused on 29 November 2001. The Refugee Review Tribunal affirmed that refusal on 18 December 2002. On 27 February 2003 and 29 October 2004, Mr Sadruga sought the Minister's personal intervention in his case pursuant to s 417 of the Act. On both occasions, the Minister declined to intervene. On 16 November 2004, Mr Sadruga was granted a bridging visa on departure grounds. However, he did not depart Australia. He remained unlawfully in Australia for some 7 years until September 2011. On 1 September 2011, Mr Sadruga lodged a combined Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa application, sponsored by his then partner. As a consequence, he was granted a bridging visa. On 8 February 2013, the sponsor withdrew her sponsorship. The application nonetheless remained on foot. On 17 December 2015, Mr Sadruga was convicted of various offences and received a nine month sentence of imprisonment. On 11 February 2016, Mr Sadruga’s bridging visa was cancelled. On 19 July 2016, the Tribunal affirmed the decision to cancel the bridging visa. On 18 August 2016, Mr Sadruga applied to the Federal Circuit Court for review of the Tribunal's decision in relation to the cancellation of his bridging visa, which was dismissed on 6 March 2017. On 6 April 2017, Mr Sadruga was convicted of further offences including use of an offensive weapon with intent to commit an indictable offence, common assault and destroying or damaging property. He was sentenced to 12 months’ imprisonment with a non-parole period of nine months. On 19 April 2018, the Department of Home Affairs sent Mr Sadruga a Notice of Intention to Consider Refusal of the visa application and invited him to comment. Further information for comment was sent to Mr Sadruga on 25 June 2018. On 17 October 2018, after considering Mr Sadruga's response, a delegate of the Minister refused the visa under s 501(1) of the Act. Mr Sadruga was notified on 22 October 2018.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In light of the foregoing, Mr Sadruga’s contention that the Tribunal failed to take into account relevant considerations must be rejected.Conclusion In conclusion, none of the grounds of review advanced by Mr Sadruga disclose error in the Tribunal’s reasons. Accordingly, I dismiss the application and order Mr Sadruga to pay the costs of the first respondent.

Ratio Decidendi

Legal Principle Established

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