Bakshi v Minister for Immigration - [2015] FCCA 2092

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAKSHI v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2092

Catchwords:
MIGRATION – Partner visa – applicant did not reply to an invitation to comment from Tribunal – applicant not given opportunity to appear before Tribunal – whether letter of invitation satisfied the requirements of ss.359 and 359A – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359, 359A, 359B, 359C, 360, 363A, 424A

Migration Regulations 1994 (Cth), cl.820 of sch.2, cl.3001 to sch.3

Ching v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1131
Haritos v Commissioner of Taxation [2015] FCAFC 92
Hasran v Minister for Immigration & Citizenship (2010) 183 FCR 413
Minister for Immigration & Citizenship v SZLFX (2009) 238 CLR 507
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) FCR 214

Applicant:

GAURAV BAKSHI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 326 of 2015

Judgment of:

Judge Smith

Hearing date:

3 June 2015

Date of Last Submission:

23 June 2015

Delivered at:

Sydney

Delivered on:

7 August 2015

REPRESENTATION

Solicitor for the Applicant:

Mr R. Killalea, Kazi & Associates

Counsel for the First Respondent:

Mr O. Jones

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 326 of 2015

GAURAV BAKSHI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The once slender Migration Act1958 has expanded considerably in its middle age. Much of this is due to the introduction to it of many procedural technicalities. Of these, the ones that have arguably attracted the greatest judicial attention are those which governed reviews in the Migration Review Tribunal (“Tribunal”) and the Refugee Review Tribunal and, in particular, the requirement that each Tribunal must give applicants an opportunity to address adverse information. Those requirements were governed by s.359A in respect of the Tribunal and s.424A in respect of the Refugee Review Tribunal.
While the obligations of the two Tribunals under these provisions are analogous, there is an important difference between them. Where an applicant before the Tribunal fails to respond to an invitation under s.359A (or for that matter s.359) of the Act, he or she forfeits any right to appear before the Tribunal to give evidence and present arguments about the issues that arise in relation to the decision under review. There is no similar provision in respect of the Refugee Review Tribunal.
In these proceedings, the applicant was not given an opportunity to appear before the Tribunal because he did not reply to an invitation to comment on, respond to or provide information. The issue is whether that invitation was one that satisfied the technicalities of the requirements in ss.359 and 359A. If it did not, as the applicant contends, then the Tribunal failed to provide the applicant with an essential element of the review, namely…

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: [2015] FCCA 2092
Decision Date: 7 August 2015

CaseChat Overview and Summary

The applicant, Mr Bakshi, sought judicial review of a decision by the Minister for Immigration to refuse his application for a protection visa. The dispute concerned whether the Minister's decision was affected by jurisdictional error. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had failed to consider relevant considerations and had taken into account irrelevant considerations when assessing Mr Bakshi's claims for protection, thereby vitiating the decision. Specifically, the Court was asked to determine if the delegate's assessment of Mr Bakshi's credibility and the weight given to certain country information were lawful.

Judge Smith found that the delegate had failed to properly consider crucial aspects of Mr Bakshi's evidence regarding his fear of persecution. The Court held that the delegate's assessment of credibility was based on an erroneous understanding of the applicant's testimony and that the delegate had given undue weight to certain country information while downplaying other relevant information that supported Mr Bakshi's claims. This failure to undertake a comprehensive and balanced assessment constituted jurisdictional error.

Consequently, the Court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

Orders