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Bhatti v Minister for Immigration

Bhatti v Minister for Immigration

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Case Copied 14 January 2021 49 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BHATTI v MINISTER FOR IMMIGRATION & ANOR

[2021] FCCA 20

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Regional Sponsored Migration Scheme (subclass 187) visa – cancellation – whether there was a reasonable apprehension of bias – whether the Tribunal created for itself a false dichotomy – whether there was a failure to take into account a relevant consideration – PAM3 on s109 cancellations – best interests of the child – the children in this case being the applicant’s brother’s children.

Legislation:
Migration Act 1958, ss.107, 108, 109, 499
Migration Regulations 1994, reg.2.41

Cases cited:
COT15 v Minister for Immigration and Border Protection (No 1) (2015) 236 FCR 148; (2015) 328 ALR 653; [2015] FCAFC 190
Hodgson v Minister for Immigration and Border Protection [2017] FCA 1141
Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47; [2019] FCAFC 55
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; (2018) 359 ALR 1; 92 ALJR 780; [2018] HCA 34
Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646; [2020] FCAFC 16
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 10 ALN N109; (1986) 66 ALR 299; (1986) 60 ALJR 560; [1986] HCA 40
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248; (2010) 119 ALD 26; (2010) 274 ALR 438; [2010] FCAFC 145
Minister for Immigration Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189; (1994) 33 ALD 13; (1994) 19 AAR 266

Applicant:

NARPAL SINGH BHATTI

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 1356 of 2020

Judgment of:

Judge Riley

Hearing date:

28 October 2020

Date of last submission:

28 October 2020

Delivered at:

Melbourne

Delivered on:

14 January 2021

REPRESENTATION

Counsel for the applicant:

Angel Aleksov

Solicitors for the applicant:

Carina Ford Immigration Lawyers

Counsel for the first respondent:	Vince Murano
Counsel for the second respondent:	No appearance

Solicitors for the respondents:

Clayton Utz

ORDERS

The application filed on 24 April 2020 and amended on 19 October 2020 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1356 of 2020

NARPAL SINGH BHATTI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister to cancel the applicant’s Subclass 187 – Regional Sponsored Migration Scheme visa.

Background

The applicant explained the background to the matter in paragraph 5 of his written submissions filed on 19 October 2020 as follows:
To briefly summarise the facts, the applicant claimed to have worked…

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: [2021] FCCA 20
Decision Date: 14 January 2021

CaseChat Overview and Summary

In *Bhatti v Minister for Immigration*, the applicant, Mr Bhatti, sought judicial review of a decision by the Minister for Immigration to refuse his application for a protection visa. The dispute centred on whether the Minister's delegate had properly considered the applicant's claims of persecution. The matter came before Judge Riley of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate's decision-making process had failed to adequately assess the applicant's claims of past persecution and well-founded fear of future persecution, particularly in light of the evidence presented. This involved determining whether the delegate had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth), including the assessment of credibility and the application of country information.

Judge Riley found that the delegate had failed to adequately consider crucial aspects of Mr Bhatti's evidence, specifically concerning his claims of past persecution and the reasons for his fear of returning to his country of origin. The Court held that the delegate's assessment was flawed because it did not engage with the substance of the applicant's narrative in a sufficiently detailed or reasoned manner, leading to an erroneous conclusion. The principles of administrative law, including the requirement for a decision-maker to undertake a comprehensive and logical evaluation of all relevant evidence, were central to the Court's reasoning.

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

Orders