Santos v Minister for Home Affairs - [2019] FCCA 2381

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANTOS & ANOR v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 2381

Catchwords:
MIGRATION – Administrative Appeals Tribunal – student (temporary) (class TU) subclass 500 visa – Ministerial Direction No. 69 – whether the Tribunal was in error in failing to provide an interpreter – whether Tribunal considered all factors specified in the Direction 69 – No jurisdictional error on part of Tribunal – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), Sch. 2 cls.500, 500.211, 500.212, 500.212(a)
Migration Act 1958 (Cth), ss.366C, 366C(1), 366C(2), 366(3), 499
Ministerial Direction No 53, 69
Federal Circuit Court Rules 2001 (Cth), r.44.15

Cases cited:

Attorney-General (NSW) v Quin (1990) 170 CLR 1

D.C. Pearce and R.S. Geddes, 4^th Edition, 1996

First Applicant:

GUSTAVO COLOMBO SANTOS

Second Applicant

CAROLINA PINHEIRO BONNEL

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

CAG 29 of 2018

Judgment of:

Judge Tonkin

Hearing date:

22 and 26 March 2019

Date of Last Submission:

1 May 2019

Delivered at:

Brisbane

Delivered on:

30 August 2019

REPRESENTATION

Solicitors for the Applicant:

Self-Represented

Solicitors for the Second Applicant:

Self-Represented

Counsel for the Respondents:

Mr Kay Hoyle

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The first respondent file and serve short written submissions (two pages) for costs within 7 days from the date of this order.
The applicant file and serve short written submissions (two pages) in response on or before 13 September 2019.
If the first respondent fails to file within the specified period, there shall be no order for costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAG 29 of 2018

GUSTAVO COLOMBO SANTOS

First Applicant

CAROLINA PINHEIRO BONNEL

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for judicial review pursuant to section 476 of the Migration Act 1958 (Cth) (“the Act”) that the first respondent show cause. The applicant seeks to review the decision of the Administrative Appeals Tribunal (“the Tribunal”) on 26 March 2018 affirming the decision of a delegate of…

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 2381
Decision Date: 30 August 2019

CaseChat Overview and Summary

Santos (the applicant) sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) concerning his application for a student (temporary) (class TU) subclass 500 visa. The applicant contended that the Tribunal had erred in failing to provide him with an interpreter during the review process and that the Tribunal had not adequately considered all the factors stipulated in Ministerial Direction No. 69.

The primary legal issues before the court were whether the Tribunal had committed jurisdictional error by failing to provide an interpreter to the applicant, and whether the Tribunal had failed to consider all relevant factors as mandated by Ministerial Direction No. 69 when assessing the visa application.

Judge Tonkin found no jurisdictional error on the part of the Tribunal. The court reasoned that the applicant had not demonstrated that he required an interpreter, nor had he requested one. Furthermore, the court was satisfied that the Tribunal had indeed considered all the factors specified in Ministerial Direction No. 69. Consequently, the application for judicial review was dismissed.

Orders