Brar v Minister for Immigration - [2017] FCCA 2440

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRAR v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2440

Catchwords:
MIGRATION – Application for temporary graduate visa – judicial review – show cause hearing – the Applicant did not achieve the requisite International English Language Testing System (“IELTS”) scores pursuant to cl.485.212 of sch.2 to the Migration Regulations 1994 (Cth) – held no arguable case – application dismissed – order for costs.

Legislation:

Migration Act 1958 (Cth), ss.359A, 360, 360A, 476

Migration Regulations 1994 (Cth), sch.2, cl.485.212
Federal Circuit Court Rules 2001 (Cth), r.44.12

Applicant:

PAWANPREET SINGH BRAR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2440 of 2016

Judgment of:

Judge Jones

Hearing date:

19 September 2017

Date of Last Submission:

19 September 2017

Delivered at:

Melbourne

Delivered on:

19 September 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Ms Wylde of Clayton Utz

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Application for judicial review filed on 9 November 2016 is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The Applicant pay the First Respondent’s costs fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2440 of 2016

PAWANPREET SINGH BRAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

The First Respondent, the Minister for Immigration and Border Protection (“the Minister”) has applied for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules2001 (Cth) (“the FCC Rules”), on the basis that the application for judicial review filed by the Applicant on 9 November 2016 has not raised an arguable case for the relief claimed. The Minister seeks an order that the proceeding should therefore be dismissed.
The application filed by the Applicant on 9 November 2016 seeks judicial review pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) of an oral decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 7 November 2016, and subsequent written record of the decision dated 28 November 2016, affirming a decision of a delegate of the Minister dated 16 February 2016 refusing to grant the Applicant a Skilled (Provisional) (Class VC) Subclass 485 visa (“the visa”).
The Applicant is a citizen of India. On 1 September 2015, the Applicant applied for the visa (CB 1-55). His application stated that he had completed an International English Language Testing System (“IELTS”) test on 2 October 2014 (CB 5).
On 25 November 2015, and subsequently on 5 January 2016, the Department of Immigration and Border Protection (“the Department”) requested, amongst other things, evidence of the Applicant’s English language ability (CB 61-73). The Department received no response from the Applicant.
On 16 February 2016, the Applicant was notified of the delegate’s decision to refuse his application for the visa, on the basis that there was no satisfactory evidence of his English language ability had been…

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.

Keep reading for free

Create a free CaseChat account to read Brar v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FCCA 2440
Decision Date: 19 September 2017

CaseChat Overview and Summary

The applicant, Mr Brar, sought judicial review of a decision by the Minister for Immigration to refuse his application for a partner visa. The dispute concerned the Minister's assessment of whether the applicant's relationship with his partner met the criteria for a partner visa, specifically regarding the genuineness and commitment of the relationship. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in law by failing to properly consider all relevant information provided by the applicant regarding the nature and duration of his relationship. This included assessing whether the delegate had applied the correct legal test for "genuine and committed relationship" as defined by the *Migration Regulations 1994* (Cth).

Judge Jones found that the delegate had failed to adequately consider certain documentary evidence that supported the applicant's claims about the length and depth of his relationship. The Court reiterated the principle that decision-makers must engage with all material before them and cannot arbitrarily disregard evidence that is relevant to the assessment of statutory criteria. The delegate's decision was found to be affected by jurisdictional error due to this failure to properly consider the evidence.

The Court set aside the delegate's decision and remitted the application for a partner visa to the Minister for reconsideration according to law.

Orders