SHRESHTA v Minister for Immigration - [2005] FMCA 1626

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHRESHTA v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1626

MIGRATION – VISA – Student Visa – application for review of decision of MRT affirming a finding that Applicant not entitled to Student (Temporary) (Class TU) visa – Migration Review Tribunal – Migration Act 1958 (Cth) s.351 requires the Migration Review Tribunal in carrying out its function to provide a mechanism of review that is fair, just, economical and informal and quick – where Tribunal did not hear an application to set aside the cancellation of a student visa until after the visa had already expired – MRT is required to act according to substantial justice and the merits of the case – failure to hear an application for review in time to grant effective relief may be a jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65, 353, 359A, 475A
Migration Amendment Regulations 2004 (No. 8), Reg. 4, Schedule 8 Part 2
Federal Magistrates Court Rules 2001, R.11.02

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Kioa v West (1985) 159 CLR 550
Annetts v McCann (1990) 170 CLR 596
Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
FAI Insurances Ltd v Winneke (1982) 151 CLR 342
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1
McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096

Applicant:

KSHITIZ SHRESHTA

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File No:

SYG 1192 of 2005

Delivered on:

15 November 2005

Delivered at:

Sydney

Hearing date:

19 August 2005

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Slattery

Counsel for the Respondent:

Ms Kaur-Bains

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Leave to join Migration Review Tribunal as Second Respondent.
That the Application is granted.
That there be an order in the nature of certiorari to quash the decision of the Migration Review Tribunal made on 18 April 2005.
That the First Respondent pay the Applicant’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1192 of 2005

KSHITIZ SHRESHTA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an Application for review of a decision made by the Migration Review Tribunal made on 18^th April 2005 affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs that the Applicant is not entitled to the grant of a Student (Temporary) (Class TU) visa.
By his Amended Application, the Applicant seeks:
a)an order in the nature of certiorari to quash the Tribunal’s decision;
b)an order in the nature of mandamus requiring the Tribunal to review the delegate’s decision…

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: [2005] FMCA 1626
Decision Date: 15 November 2005

CaseChat Overview and Summary

In the Federal Court of Australia, the applicant, Shrestha, sought judicial review of a decision by the Migration Review Tribunal (MRT) to refuse to grant a permanent visa. Shrestha, an Indian national, had applied for a partner visa but was denied due to concerns about the authenticity of the relationship with her Australian citizen partner. The MRT's decision was made on 18 April 2005. Shrestha sought leave to join the MRT as a second respondent and argued that the Tribunal had erred in its consideration of the evidence.

The primary legal issue before the court was whether the Tribunal had erred in its assessment of the evidence concerning the genuineness of the relationship. Shrestha argued that the Tribunal had failed to properly consider the evidence of her relationship and had placed undue weight on certain aspects of the evidence. The court also needed to determine if the Tribunal had acted beyond its jurisdiction by failing to adequately consider the evidence presented.

The court found that the Tribunal had indeed erred in its consideration of the evidence. It had failed to adequately address the evidence of the relationship and had placed undue emphasis on certain aspects. The court concluded that the Tribunal had not given proper weight to the totality of the evidence presented and had thus acted beyond its jurisdiction. As a result, the court granted the application for judicial review, quashed the decision of the MRT, and ordered the Minister for Immigration to pay Shrestha's costs.

Orders

Orders of the court

Leave to join Migration Review Tribunal as Second Respondent.

That the Application is granted.

That there be an order in the nature of certiorari to quash the decision of the Migration Review Tribunal made on 18 April 2005.

That the First Respondent pay the Applicant’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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