Bari v Minister for Immigration - [2013] FMCA 14

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARI v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 14

MIGRATION – Application for review of decision of Migration Review Tribunal – information provided to Trades Recognition Australia – whether TRA was a relevant assessing authority – whether PIC 4020 applied – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), s.476
Migration Regulations 1994 (Cth), r.1.03, 2.26B, Pt.886 of Sch.2, Sch.4
Legislative Instruments Act 2003 (Cth), s.12
Migration Amendment Regulations 2011 (No 1) (Cth), Sch 3

Singh v Minister for Immigration & Anor [2012] FMCA 145
Hu & Anor v Minister for Immigration & Citizenship & Anor [2007] FMCA 1710
Dhiman v Minister for Immigration & Citizenship [2012] FMCA 646
Dhiman v Minister for Immigration & Citizenship [2012] FCA 1254
Ignatious v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1395; (2004) 139 FCR 254

Applicant:

KAZI MD ZIAUL BARI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 890 of 2012

Judgment of:

Nicholls FM

Hearing date:

2 November 2012

Date of Last Submission:

6 November 2012

Delivered at:

Sydney

Delivered on:

22 January 2013

REPRESENTATION

Counsel for the Applicant:

Mr L J Karp

Solicitors for the Applicant:

Parish Patience Immigration Lawyers

Counsel for the Respondents:

Mr B D Kaplan

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application made on 23 April 2012 and amended on 27 June 2012 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 890 of 2012

KAZI MD ZIAUL BARI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 23 April 2012, and amended on 27 June 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), made on 26 March 2012, to affirm the decision of the Minister’s delegate, made on 31 August 2010, to refuse the grant of a Skilled (Residence) (Class VB) visa to the applicant.

Background

The applicant is a citizen of Bangladesh (CB 2). On 21 August 2009 he applied for a Skilled Sponsored (Class VB, subclass 886) visa (“the visa”) (CB 1 to CB 41, including attachments). The applicant’s nominated skilled occupation was “Cook” (CB 9). Relevantly, with that application the applicant provided three work reference letters from three different restaurants: “Indioz” (CB 16), “Bombay Fusion” (CB 17 to CB 19) and “The Clay Oven” (CB 20 to CB 23).

The Delegate

By letter dated 12 July 2010 the applicant was advised that “[r]esults of an investigation conducted by this department indicate that some of the information provided with your application may be false or misleading” (CB 45.6). Specifically, the information provided by the applicant to the “Department of Education, Employment and Workplace Relations to obtain a Skills Assessment”. The applicant was referred to (the now repealed) cl.886.224 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: [2013] FMCA 14
Decision Date: 22 January 2013

CaseChat Overview and Summary

In Bari v Minister for Immigration, the applicant, a non-citizen, sought judicial review of the Minister for Immigration's decision to cancel their visa. The Federal Court of Australia was tasked with determining the legality and merits of the decision. The central issue before the court was whether the Minister had correctly exercised his discretion to cancel the visa based on character grounds. The applicant argued that the decision was flawed due to procedural errors and that the Minister had not properly considered all relevant factors.

The court examined the Minister's decision-making process and whether it complied with the Migration Act. It was determined that the Minister had indeed considered the necessary factors but had made an error in not providing reasons for a particular consideration. Despite this error, the court found that it did not materially affect the outcome of the decision. The court held that the Minister's decision was legally sound, as the applicant's conduct warranted visa cancellation under the Act.

Consequently, the Federal Court dismissed the applicant's application for judicial review. The court ordered that the applicant pay the Minister's costs, set at $5,400.00. The court's decision underscored the importance of procedural compliance in administrative decision-making while affirming the Minister's authority to cancel visas on character grounds when warranted.

Orders

Orders of the court

The application made on 23 April 2012 and amended on 27 June 2012 is dismissed.

The applicant pay the first respondent’s costs set in the amount of $5,400.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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