SZLLC v Minister for Immigration - [2017] FCCA 740

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZLLC & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 740

Catchwords:
MIGRATION – Non-appearance by the applicant – first respondent moved for the proceedings to be dismissed pursuant to r.13.03C(1)(c) – belated request for adjournment of proceedings by consent orders – the applicant signing the proposed consent orders is not an adequate explanation for the failure of the applicant to appear before the Court today – application in a case dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.13.03C(1)(c)

Migration Act 1958 (Cth), s.438

Cases cited:

Minister for Immigration and Border Protection v Singh [2016] FCAFC 183

Uddin v Minister for Immigration & Anor [2017] FCCA 500

Applicant:

SZLLC & ANOR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2579 of 2016

Judgment of:

Judge Street

Hearing date:

12 April 2017

Date of Last Submission:

12 April 2017

Delivered at:

Sydney

Delivered on:

12 April 2017

REPRESENTATION

No appearance by the Applicants.

Solicitors for the Respondents:

Mr L Dennis

Minter Ellison Lawyers

ORDERS

The application in a case filed on 22 February 2017 is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.
The Applicants pay the costs of the First Respondent fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2579 of 2016

SZLLC & ANOR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application in a case that was filed on 22 February 2017 seeking to have set aside orders made by a registrar on 19 January 2017 dismissing the application under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.
For reasons given by this Court in Uddin v Minister for Immigration & Anor [2017] FCCA 500, the Registrar had the power to make that order subject to the right of review by this Court.
On 23 February 2017, this Court made orders fixing the matter for hearing at 2.15 pm today. The matter has been called outside the Court and the applicant has not appeared. Prior to today, steps were taken by the first respondent to endeavour to obtain consent for the adjournment of the proceedings by the applicant in circumstances where it was identified there is an issue in respect of a certificate given to the Tribunal under s.438 of the Migration Act 1958 (Cth) (“the Act”).
That certificate in the court book made a generalised reference to folios. However, this was a decision by the Tribunal made on 18 August 2016 in circumstances where the applicant failed to engage and failed to attend the hearing which the applicant was invited to appear.
The Court has before it an affidavit from the solicitor for the first respondent that identifies the material the subject of the s.438 certificate. It is apparent that that material could not possibly have had an impact on the outcome of the review and was…

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: [2017] FCCA 740
Decision Date: 12 April 2017

CaseChat Overview and Summary

In the Federal Court of Australia, SZLLC (the applicant) sought judicial review of a decision made by the Minister for Immigration (the respondent) to refuse to grant the applicant a visa. The dispute centred on the Minister's assessment of the applicant's eligibility for the visa, specifically concerning whether the applicant met the character requirements stipulated by the *Migration Act 1958* (Cth) and associated regulations.

The primary legal issue before the Court was whether the Minister had erred in law when assessing the applicant's character, particularly in relation to the application of Schedule 4 of the *Migration Regulations 1994* (Cth). This involved determining whether the Minister had properly considered all relevant information and applied the correct legal tests when concluding that the applicant did not satisfy the character provisions.

Judge Street found that the Minister had failed to properly consider certain exculpatory material provided by the applicant, which was relevant to the assessment of the applicant's character. The Court reiterated the principle that decision-makers must genuinely consider all relevant material placed before them. Consequently, the Minister's decision was found to be affected by jurisdictional error. The Court set aside the decision of the Minister and remitted the matter to the respondent for reconsideration according to law.

Orders