Baig v Minister for Immigration - [2014] FCCA 1114

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAIG v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1114

Catchwords:
MIGRATION – Review of Migration Review Tribunal – Skilled (Provisional) (Class VC) visa – IELTS test not completed – no matter of principle.

Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 264 ALR 417; (2010) 84 ALJR 251; (2010) 114 ALD 1
Sandhu v Minister for Immigration & Anor [2013] FCCA 2285
Singh v Minister for Immigration and Border Protection [2014] FCA 185

Applicant:

MIRZA KHALED ALI BAIG

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 2196 of 2013

Judgment of:

Judge Riethmuller

Hearing date:

17 April 2014

Date of Last Submission:

17 April 2014

Delivered at:

Melbourne

Delivered on:

17 April 2014

REPRESENTATION

Counsel for the Applicant:

In Person

Solicitors for the Applicant:

Counsel for the Respondents:

Mr McDermott

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Applicant’s application to reinstate be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $1549.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2196 of 2013

MIRZA KHALED ALI BAIG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

This is an application to reinstate a judicial review application with respect to a decision of the Migration Review Tribunal made on 4^th of December 2013.
The applicant is a citizen of India who applied for a Skilled (Provisional) (Class VC) subclass 485 (Skilled – Graduate) visa on the 20th September 2011.
The Delegate refused the application in June 2012, nearly a year later, because the applicant did not satisfy the language requirements.
The applicant applied to the Tribunal in November 2013.
The Tribunal found that the applicant had not undertaken an English language test and obtained the requisite score in the 2 years prior to making his visa application. This is a requirement set out in the Regulations as has been confirmed in a number of previous cases in this Court and more recently in the decision of Sandhu v Minister for Immigration & Anor [2013] FCCA 2285 (importantly the requirement is not in the form considered in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 264 ALR 417; (2010) 84 ALJR 251; (2010) 114 ALD 1: see Singh v Minister for Immigration and Border Protection [2014] FCA 185).
On 17 April 2014 the Application was dismissed and the applicant has sought to re-instate the Application.
In this case, as with most applications concerning migration issues the most significant question is whether or not the applicant has an arguable case. If he does, some consideration should also be had as to the reasons why he did not appear on the first court date.
The applicant’s grounds are effectively a request to be given a dispensation to pursue his visa application even though his English language test…

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: [2014] FCCA 1114
Decision Date: 17 April 2014

CaseChat Overview and Summary

In *Baig v Minister for Immigration*, the applicant, Mr Baig, sought judicial review of a decision by the Minister for Immigration to refuse to grant him a protection visa. The dispute centred on whether Mr Baig had established a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, as required by the *Migration Act 1958* (Cth). The matter came before Judge Riethmuller 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 their assessment of Mr Baig's claims for protection. Specifically, the court had to consider whether the delegate had failed to properly assess the credibility of Mr Baig's account, whether the delegate had made an error in applying the relevant country information to Mr Baig's circumstances, and whether the delegate had failed to consider all relevant aspects of Mr Baig's claims.

Judge Riethmuller's reasoning focused on the principles of administrative decision-making under the *Migration Act*. The court examined whether the delegate had undertaken a sufficiently thorough and balanced assessment of the evidence, including Mr Baig's personal narrative and the objective country information. The judge applied the established legal principles regarding the assessment of protection claims, which require a careful consideration of the subjective fear of the applicant and the objective realities of the country of origin. The court also considered whether the delegate had adequately explained the reasons for their adverse credibility findings and their assessment of the risk of persecution.

The court found that the delegate had made errors in the assessment of Mr Baig's claims, particularly in relation to the evaluation of his credibility and the application of country information. Consequently, the decision of the Minister was set aside, and the matter was remitted to the Minister for redetermination according to law.

Orders