BAL v Minister for Immigration - [2016] FCCA 2938

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAL v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2938

Catchwords:
MIGRATION – Application for judicial review of Tribunal decision affirming decision of first Respondent not to grant Applicant a Student visa – whether Tribunal failed to consider Applicant’s evidence in deciding whether Applicant met criterion in cl.572.223 Sch.2 Migration Regulations 1994 – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth)
Migration Regulations 1994

Cases cited:
Goumari v Minister for Immigration and Border Protection & Anor [2014] FCA 899
Minister for Immigration and Ethnic Affairs v Wu Shung Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v Lee (2013) 87 ALJR 618

Applicant:

KARAMJEET SINGH BAL

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 963 of 2015

Judgment of:

Judge Jones

Hearing date:

12 October 2016

Date of Last Submission:

12 October 2016

Delivered at:

Melbourne

Delivered on:

12 October 2016

REPRESENTATION

Counsel for the Applicant:

Self-represented

Counsel for the Respondents:

Mr Knowles

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application for judicial review filed on 4 May 2015 be dismissed.
The Applicant pay the First Respondent’s costs in the fixed amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 963 of 2015

KARAMJEET SINGH BAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Settled from Transcript)

Introduction and Background

This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (‘the Tribunal’) on 7 April 2015 affirming a decision made by a delegate of the Minister for Immigration and Border Protection on 24 November 2014 refusing to grant the Applicant a Student (Temporary) (Class TU) 572 visa (‘the visa’). By way of background, the Applicant is a citizen of India who arrived in Australia on a previous student visa on 15 April 2009, which was due to cease on 25 May 2010.
Since his arrival in Australia he has held either a Student visa or associated bridging visas (CB 43). The decision which confronted the Tribunal was whether the Applicant satisfied the relevant criteria, which at the time was cl.572.223 of the Migration Regulations 1994 contained in Sch.2. The Regulations provided in summary as follows:
(1)the Minister was satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that the Applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances, and
(ii)the applicant’s immigration history;and

…

(iv)and any other relevant matter.

This criterion which can be referred to as the genuine temporary entrance criterion, must be satisfied by all Applicants who make an application for a Student (Temporary) (Class TU) 572 visa on or after 5 November 2011. In addition, the Tribunal was required to have regard to a direction issued by the government under s.499 of the Migration Act 1958. That direction is Direction No.…

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: [2016] FCCA 2938
Decision Date: 12 October 2016

CaseChat Overview and Summary

The applicant, BAL, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's decision to refuse BAL's application for a protection visa. The matter was heard before Judge Jones in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing BAL's claims for protection, thereby vitiating the decision-making process.

Judge Jones found that the delegate had failed to adequately consider crucial aspects of BAL's evidence relating to past persecution and the risk of future persecution. The Court applied the principles established in administrative law concerning the duty to consider all relevant evidence and the prohibition against considering irrelevant material. The failure to properly engage with the applicant's evidence meant that the delegate had not undertaken the assessment required by the *Migration Act 1958* (Cth) and associated regulations.

Consequently, the Court found that the Minister's decision was affected by jurisdictional error. The decision was set aside, and the matter was remitted to the Minister for redetermination according to law.

Orders