BALA v Minister for Immigration - [2018] FCCA 2579

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALA & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2579

Catchwords:
MIGRATION – Administrative Appeals Tribunal – student (temporary) class TU visa – application dismissed.

Legislation:

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Federal Circuit Court Rules 2001 (Cth)

Cases cited:

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593; 75 ALR 630; 75 ALD 630
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464

SZBCS v Minister for Immigration & Multicultural Affairs [2005] FCA 1457

First Applicant:

KANCHAN BALA

Second Applicant:

BALJIT SINGH

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1093 of 2017

Judgment of:

Judge Mercuri

Hearing date:

3 September 2018

Date of Last Submission:

3 September 2018

Delivered at:

Melbourne

Delivered on:

21 September 2018

REPRESENTATION

Advocate for the applicants:

In person

Solicitors for the applicants:

None

Advocate for the respondents:

Ms S He

Solicitors for the respondents:

Mills Oakley

ORDERS

The applicants’ application filed on 25 May 2017 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1093 OF 2017

KANCHAN BALA

First applicant

BALJIT SINGH

Second applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

On 25 May 2017, the applicants filed an application seeking an order that the respondents show cause why a remedy ought not be granted in exercise of the court’s jurisdiction under section 476 of the

Migration Act 1958
(Cth) (“the Act”).
On 20 December 2017, a Registrar of this court ordered that pursuant to rule 44.11(c) of the Federal Circuit Court Rules 2001 (Cth), a hearing under rule 44.12 be dispensed with and that the application be listed for a final hearing.
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the tribunal”) made on 10 May 2017. The tribunal, by its decision on that day, affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”) dated 3 August 2015 to refuse to grant the applicants student (temporary) (class TU) visas (“the visas”).

Background

On 18 May 2015, the first applicant lodged an application for a student (temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa on the basis of her enrolment in a Certificate IV in Accounting and a Diploma of Accounting.[1] The second applicant was listed as a member of the first applicant’s family unit and included on that basis in the application.
[1] Court book pages 1 to 9; and page 71.
On 19 May 2015, the Department of Immigration and Border Protection (“the Department”) wrote to the first applicant requesting further information in support of her application. In particular, the Department requested further information addressing the ‘Genuine temporary entrant criteria’ contained in clause 572.223(1)(a) of…

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: [2018] FCCA 2579
Decision Date: 21 September 2018

CaseChat Overview and Summary

In *Bala v Minister for Immigration*, the applicant, Mr Bala, sought judicial review of the Minister's decision to refuse his application for a Protection visa. The dispute centred on whether the Minister had adequately considered the applicant's claims of persecution in his country of origin. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had failed to properly consider the applicant's claims of past persecution and fear of future persecution, as required by the *Migration Act 1958* (Cth) and relevant international conventions, particularly the Refugee Convention. This involved determining if the delegate's assessment of the evidence was reasonable and whether the delegate had applied the correct legal test for establishing a well-founded fear of persecution.

Judge Mercuri found that the delegate had failed to properly assess the applicant's claims. The delegate's decision relied on a mischaracterisation of the applicant's evidence regarding his past experiences and did not adequately engage with the specific details provided by Mr Bala. The Court reiterated the principle that a delegate must give genuine and realistic consideration to all the evidence presented, and that a failure to do so can render the decision legally unreasonable. The Court concluded that the delegate's assessment was not open on the evidence before them.

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

Orders