ALI v Minister for Immigration - [2017] FCCA 3145

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALI & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 3145

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – no proper grounds of review – no arguable case – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.57, 140GB, 338, 359, 359C, 360, 363A. Migration Regulations 1994 (Cth), sch.2, cl.457.223, 457.321.

Cases cited:

Hasran v Minister for Immigration and Citizenship[2010] FCAFC 40.

Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301.

Kandel v Minister for Immigration and Another [2015] FCCA 2013.

SZASP v Minister for Immigration and Citizenship [2007] FCA 771.

First Applicant:

ZAHID ALI

Second Applicant:

HEMAVATHY POLUR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1574 of 2016

Judgment of:

Judge Hartnett

Hearing date:

28 November 2017

Delivered at:

Melbourne

Delivered on:

28 November 2017

REPRESENTATION

The Applicants:

In Person

Solicitor acting as Counsel for the First Respondent:

Ms Stone

Solicitors for the First Respondent:

DLA Piper

ORDERS

Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.
The Applicants pay the costs of the First Respondent fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1574 of 2016

ZAHID ALI

First Applicant

HEMAVATHY POLUR

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

Before the Court is an application filed on 25 July 2016 seeking relief in the form of constitutional writs against the decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 24 June 2016. In that decision, the Tribunal affirmed a decision of a delegate of the First Respondent not to grant the First Applicant a Temporary Business Entry (Class UC) visa (‘the visa’).

History

This history derives from the First Respondent’s submissions and materials in the Court Book which are in evidence before the Court.
On 18 November 2014, the visa Applicants applied for the visa.
The associated nomination application lodged by the First Applicant’s sponsor, Supple Solutions Proprietary Limited (‘Supple Solutions’) was refused by the Department of Immigration and Border Protection (‘the Department’) on 6 February 2015. The Department put this refusal to the First Applicant for comment under s.57 of the Migration Act 1958 (Cth) (‘the Act’), and in response a further nomination application identifying the First Applicant was lodged by Supple Solutions on 23 March 2015.
On 29 April 2015, a delegate of the First Respondent refused to grant the visa on the basis that the First Applicant was not the subject of an approved nomination and thus cl.457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) had not been met.
The delegate noted in her Decision Record dated 29 April 2015 that a further nomination had been lodged on 23 March 2015 but that no assessment had been made in relation…

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 3145
Decision Date: 28 November 2017

CaseChat Overview and Summary

The applicant, ALI, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for a reason specified in section 5(1) of the *Migration Act 1958* (Cth). The matter came before Judge Hartnett of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in failing to properly assess the applicant's claims of past persecution and the real chance of future persecution should they be returned to their country of origin. Specifically, the Court was required to determine if the delegate had adequately considered all relevant evidence and applied the correct legal standards in assessing the credibility of the applicant's account and the objective country information.

Judge Hartnett found that the delegate had failed to adequately consider certain aspects of the applicant's evidence, particularly in relation to the alleged persecution. The Court reiterated the principles that a delegate must consider all claims made by an applicant and that a well-founded fear requires both subjective fear and objective reasons for that fear. The delegate's assessment was found to be deficient in its evaluation of the evidence presented by the applicant, leading to an erroneous conclusion. The Court quashed the decision of the Minister and remitted the application for reconsideration according to law.

Orders