Bhandari v Minister for Immigration - [2015] FCCA 2297

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHANDARI & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2297

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of an extension of time for the filing of the judicial review application.

Legislation:

Migration Act 1958 (Cth), ss.116, 119, 140, 477

Migration Regulations 1994 (Cth)

ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142
Hickey v Australian Communications Commission (1983) 72 FLR 291

Hunter Valley Development Pty Limited v Cohen, Minister for Home Affairs & Environment (1984) 3 FCR 344

Mazumdar v Minister for Immigration & Anor [2012] FMCA 1170
Seiler v Minister for Immigration (1994) 48 FCR 83
SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
SZMNO v Minister for Immigration [2009] FCA 797
SZNZI v Minister for Immigration & Anor [2010] FMCA 57
SZQBT v Minister for Immigration [2011] FCA 1281
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 139 ALD 252

SZTES v Minister for Immigration [2015] FCA 719

Yu v Minister for Immigration (2009) 236 FLR 251

First Applicant:

SHANTI RAM BHANDARI

Second Applicant:

YESHODA SILWAL BHANDARI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2469 of 2014

Judgment of:

Judge Driver

Hearing date:

25 August 2015

Delivered at:

Sydney

Delivered on:

25 August 2015

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondents:

Mr L Gell of Clayton Utz

INTERLOCUTORY ORDERS

The name of the second respondent is amended to the Administrative Appeals Tribunal.
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time be refused.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2469 of 2014

SHANTI RAM BHANDARI

First Applicant

YESHODA SILWAL BHANDARI

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application filed on 3 September 2014 seeking judicial review of a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The Tribunal decision was made on 24 January 2014. The Tribunal affirmed a decision of a delegate of the Minister to cancel the student visa of the first applicant, Mr Bhandari. The visa of the second applicant, Mrs Bhandari, was also cancelled as a necessary consequence of that decision.
Background facts relating to the matter are conveniently set out in the Minister’s outline of submissions filed on 18 August 2015.
Mr Bhandari is a citizen of Nepal and arrived in Australia in December 2007 as the holder of a student visa.
On 4 June 2013, Mr Bhandari received a notice of intention to consider cancellation of his student visa (NOICC) sent pursuant to s.116 of the Migration Act 1958 (Cth) (Migration Act)[1]. The NOICC related to his last held student visa, granted…

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 2297
Decision Date: 25 August 2015

CaseChat Overview and Summary

The applicant, Mr. Bhandari, sought judicial review of a decision by the Minister for Immigration to refuse his application for a Protection Visa (Class XA). The dispute concerned whether Mr. Bhandari met the criteria for a Protection Visa, specifically whether he would be subject to persecution in his country of origin. The matter was heard by Driver J in the Federal Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had erred in law by failing to properly consider and assess the evidence of past persecution and the risk of future persecution that Mr. Bhandari claimed to have suffered and would suffer upon return to his country of origin. This involved determining whether the delegate had adequately addressed the specific claims made by Mr. Bhandari and whether the assessment of the evidence was reasonable and in accordance with the relevant legislative provisions.

Driver J found that the delegate had failed to properly consider the evidence relating to Mr. Bhandari's claims of past persecution. The Court held that the delegate's assessment was flawed because it did not engage with the substance of the evidence provided, particularly concerning the alleged actions of state agents. The legal principle applied was that a decision-maker must genuinely consider all relevant evidence presented by an applicant, and a failure to do so constitutes an error of law. The Court concluded that the delegate's decision was vitiated by this failure.

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

Orders