Sebastian v Minister for Immigration - [2020] FCCA 2331

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEBASTIAN v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2331

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a skilled work visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.476

Cases cited:

Kaur v Minister for Immigration and Border Protection: (2015) 233 FCR 507; [2015] FCA 584 [41]
Kumar v Minister for Immigration [2018] FCA 140
Thlork v Minister for Immigration [2019] FCA 333

Applicant:

NIGEL JUDE SEBASTIAN

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3416 of 2019

Judgment of:

Judge Driver

Hearing date:

24 August 2020

Delivered at:

Sydney

Delivered on:

24 August 2020

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents:

Ms C. Juarez

INTERLOCUTORY ORDERS

Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3416 of 2019

NIGEL JUDE SEBASTIAN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

The applicant, Mr Sebastian, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 9 December 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Sebastian a Skilled Provisional Class VC Visa.
Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 7 August 2020 which I adopt.
Mr Sebastian is a citizen of India. On 8 March 2019, he made an application for a graduate visa.[1] On 14 May 2018, a delegate refused to grant the visa.[2] The delegate found that Mr Sebastian had not provided any evidence to prove he satisfied clause 485.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Migration Regulations).[3]
[1] Court Book (CB) 1
[2] CB 101
[3] CB 103
On 13 August 2019, Mr Sebastian sought review of the delegate's decision before the Tribunal.[4] Mr Sebastian appeared at a hearing before the Tribunal on 26 November 2019 to give evidence and present arguments.[5] On 9 December 2019, the Tribunal affirmed the decision under review.[6]
[4] CB 105
[5] CB 145
[6] CB 155

Tribunal decision

The Tribunal identified that the issue before it was whether Mr Sebastian satisfied clause 485.212. That clause provided:[7]
[7] CB 156 at [7]
The application was accompanied by evidence that:
(a) the applicant:
(i)has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and
(ii)has achieved, within the period specified…

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 2331
Decision Date: 24 August 2020

CaseChat Overview and Summary

Sebastian (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse his application for a skilled work visa. The primary dispute concerned the interlocutory dismissal of a show cause application made by the applicant.

The central legal issue before the Court was whether the applicant had an arguable case of jurisdictional error in relation to the refusal of his visa application and the subsequent dismissal of his show cause application.

Driver J found that the applicant had failed to demonstrate an arguable case of jurisdictional error. The Court reasoned that the applicant had not identified any specific error of law that would vitiate the decision-making process. The dismissal of the show cause application was considered a procedural step that did not, in itself, constitute jurisdictional error in the absence of an underlying legal flaw in the substantive decision.

The application for judicial review was dismissed.

Orders