Seeburrun v Minister for Immigration - [2015] FCCA 748

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEEBURRUN v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 748

Catchwords:
MIGRATION – Application for review of decision of the Refugee Review Tribunal – no arguable case raised – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.353, 357A, 476

Migration Regulations 1994 (Cth), Schedule 2
Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.13

SZTBV v Minister for Immigration & Anor [2014] FCCA 2106
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219
Xie v The Immigration Department [1999] FCA 365
Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20
SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702
Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252

Applicant:

DHEEMA SEEBURRUN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1212 of 2014

Judgment of:

Judge Nicholls

Hearing date:

13 March 2015

Date of Last Submission:

13 March 2015

Delivered at:

Sydney

Delivered on:

13 March 2015

REPRESENTATION

Applicant:

In Person

Solicitors for the Respondents:

Ms C Hillary of DLA Piper Australia

ORDERS

The application made on 6 May 2014 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $4,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1212 of 2014

DHEEMA SEEBURRUN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 6 May 2015 seeking review of a decision of the Migration Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister to refuse a Temporary Business Entry (Class UC) visa (“the visa”) to Ms Dheema Seeburrun (“the applicant”).

Background

The Minister has filed a bundle of relevant documents which is in evidence before the Court (“the Court Book” – “CB”). The following background can be ascertained from these documents.
The applicant is a citizen of Mauritius. She applied for the visa on 15 July 2013, with the assistance of a registered migration agent (CB 1 to CB 11). Given the legal requirements for the grant of the visa, it is important to note that her previous substantive visa ceased on 26 June 2013. That is,…

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: [2015] FCCA 748
Decision Date: 13 March 2015

CaseChat Overview and Summary

In *Seeburrun v Minister for Immigration*, the applicant, Mr. Seeburrun, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant Mr. Seeburrun a visa, a decision Mr. Seeburrun contended was unlawful. The matter was heard before Judge Nicholls in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the visa application was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister, in assessing Mr. Seeburrun's application, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Judge Nicholls reasoned that the delegate's assessment had indeed been flawed. The Court found that the delegate had failed to properly consider crucial evidence provided by the applicant regarding his circumstances and the reasons for his delay in lodging certain documentation. This failure to engage with relevant material constituted a failure to exercise the power conferred by the relevant legislation according to its terms, amounting to jurisdictional error. Consequently, the Minister's decision was set aside.

Orders