Bajaj v Minister for Immigration - [2017] FCCA 1162

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAJAJ v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1162

Catchwords:
MIGRATION – Subclass 572 visa – evidence of inability to satisfy financial capacity requirements – accepted error in calculating the value of funds borrowed – error as to jurisdictional fact – appeal allowed.

Legislation:

Migration Act 1958 (Cth), s.65

Cases cited:

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263
Nadesan v Minister for Immigration and Anor [2013] FMCA 152

Applicant:

LOKESH BAJAJ

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2690 of 2015

Judgment of:

Judge McNab

Hearing date:

20 April 2017

Date of Last Submission:

20 April 2017

Delivered at:

Melbourne

Delivered on:

2 June 2017

REPRESENTATION

Applicant in person

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application filed on 4 December 2015 is allowed.
A writ in the nature of certiorari be issued to quash the decision of the Second Respondent, AAT reference 1419634, dated 27 November 2015.
A writ in the nature of mandamus be issued directing the Second Respondent to reconsider and determine the matter according to law.
Any application for costs be made within 14 days of the date of this order.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2690 of 2015

LOKESH BAJAJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By way of application filed on 4 December 2015, the applicant seeks to set aside the decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 27 November 2015, which affirmed the decision of a delegate of the Minister for Immigration to refuse to grant the applicant a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa (‘the visa’) under s.65 of the Migration Act 1958 (‘the Act’).
The applicant is a citizen of India who was enrolled in a Certificate III in Automotive Electrical Technology and Diploma of Business at Education Access Australia at the time of applying for the visa.
The applicant applied for the visa on 8 September 2014. The grant of the visa was dependent on the type of course in which the applicant was enrolled in or had an offer of enrolment as his principal course. As the relevant subclass was Subclass 572, the applicant had to meet the requirements of cl. 572.223 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). To meet this criterion, the applicant had to give evidence in accordance with Schedule 5A of the Regulations for the highest assessment level for the applicant.
On 9 September 2014, the Department sent an email to the applicant’s representative requesting that the applicant provide further information in relation to the genuine temporary entrant criterion and the financial capacity requirements as set out in Schedule 5A of the Regulations. The Department indicated that the applicant was required to demonstrate that…

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 1162
Decision Date: 2 June 2017

CaseChat Overview and Summary

In *Bajaj v Minister for Immigration*, the applicant, Mr. Bajaj, sought judicial review of a decision by the Minister for Immigration to refuse his application for a Protection Visa. The dispute centred on whether Mr. Bajaj had established a well-founded fear of persecution for a reason specified in section 5(1) of the *Migration Act 1958* (Cth).

The primary legal issue before Judge McNab was whether the delegate of the Minister had erred in law by failing to properly consider and assess the evidence relating to Mr. Bajaj's claims of persecution. Specifically, the court was required to determine if the delegate had adequately assessed the credibility of Mr. Bajaj's account and whether the delegate's adverse credibility findings were reasonably open on the evidence.

Judge McNab found that the delegate had failed to provide adequate reasons for rejecting key aspects of Mr. Bajaj's evidence. The delegate's adverse credibility findings were not sufficiently particularised or explained, leaving it unclear how the delegate had weighed the evidence or why certain aspects were disbelieved. This failure meant that the decision-making process was vitiated by an error of law, as the delegate had not properly engaged with the evidence presented by the applicant.

Consequently, Judge McNab set aside the decision of the Minister and remitted the application for a Protection Visa to the Minister for redetermination according to law.

Orders