Brar v Minister for Immigration - [2017] FCCA 61

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRAR v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 61

Catchwords:
MIGRATION – Judicial review application – Partner (Residence) (Class BS) visa – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5F, 65, 66, 357A, 360 and 476

Migration Regulations 1994 (Cth), Sch.2, cll.801.221 and 820.211

Dassanayake v Minister for Immigration & Anor [2016] FCCA 1302
Mansour v Minister for Immigration & Anor [2016] FCCA 2358
Minister for Immigration & Citizenship v Manaf [2009] FCA 963; (2009) 111 ALD 437; (2009) 113 ALD 88
Pavuluri v Minister for Immigration & Border Protection [2014] FCA 502; (2014) 221 FCR 74; (2014) 142 ALD 256
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; (2004) 211 ALR 261; (2004) 80 ALD 534

Applicant:

GURSHARAN SINGH BRAR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 559 of 2015

Judgment of:

Judge Lucev

Hearing date:

20 December 2016

Date of Last Submission:

20 December 2016

Delivered at:

Perth

Delivered on:

25 January 2017

REPRESENTATION

For the Applicant:

In person

Counsel for the First Respondent:

Ms E Tattersall

For the Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Sparke Helmore

ORDERS

That the application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 559 of 2015

GURSHARAN SINGH BRAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

On 1 December 2015 the applicant lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Administrative Appeals Tribunal dated 27 October 2015 (“2015 Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse the applicant a Partner (Residence) (Class BS) visa (“Partner Residence Visa”) under s.65 of the Migration Act 1958.

Background

The applicant, a citizen of India, lodged an application for a Partner (Temporary) (Class UK Subclass 820) visa (“Temporary Partner Visa”) and a Partner Residence Visa on 18 March 2013: CB 1-24. The applicant was sponsored by his wife, Rosalita Lee Brar (née Marshall): CB 25-34.
On 10 July 2013, the Delegate’s Decision was to refuse the grant of the Temporary Partner Visa: CB 61-72. The Delegate was not satisfied that at the time of the application, or since that time, the applicant and sponsor met the definition of spouse in s.5F of the Migration Act 1958. Accordingly, the applicant did not meet c1.820.211(2) of Sch.2 of the Migration Regulations 1994 (Cth). As the applicant had been refused the Temporary Partner Visa the Delegate found that the applicant did not meet the requirements for a Partner Residence Visa, and therefore also refused the application for a Partner Residence Visa: CB…

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: [2017] FCCA 61
Decision Date: 25 January 2017

CaseChat Overview and Summary

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

The primary legal issue before the Federal Circuit Court was whether the decision-maker had failed to properly consider the applicant's claims of past persecution and well-founded fear of future persecution, as required by the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). Specifically, the court examined whether the delegate's assessment of the evidence presented by Mr Brar was reasonable and whether the delegate had applied the correct legal test for establishing a well-founded fear of persecution.

Judge Lucev found that the delegate had failed to adequately consider crucial aspects of Mr Brar's evidence regarding his experiences and the country information relevant to his claims. The court held that a failure to give proper weight to significant evidence, or to engage with the substance of the applicant's claims, could amount to a jurisdictional error. The principles applied involved the proper construction and application of the criteria for a Protection visa, including the assessment of past persecution and the likelihood of future persecution, and the overarching duty of a decision-maker to conduct a fair and thorough assessment of the evidence.

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

Orders