Chaudhari v Minister for Immigration - [2018] FCCA 863

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAUDHARI v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 863

Catchwords:
MIGRATION – Medical treatment visa refused – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.359, 359B, 359C, 360, 363A, 379A, 424A.

Migration Regulations 1994 (Cth), Sch.2, cl..602.213; Sch.3

Cases cited:

Singh v Minister of Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1291
M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333
Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40
Bakshi v Minister for Immigration and Border Protection (2015) 299 FLR 232; [2015] FCCA 2092
Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241
SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435
VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271

Applicant:

DINESHKUMAR JOITABHAI CHAUDHARI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 926 of 2016

Judgment of:

Judge Howard

Hearing date:

22 February 2018

Date of Last Submission:

22 February 2018

Delivered at:

Brisbane

Delivered on:

22 February 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Minter Ellison

ORDERS

That the Application filed 7 October 2016 be dismissed.
That the Applicant pay the First Respondent’s costs of these proceedings in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 926 of 2016

DINESHKUMAR JOITABHAI CHAUDHARI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

A.These reasons were delivered ex tempore on 22 February 2018 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.

The applicant in this case was born in India on 27 September 1977. He was in fact born in the state of Gujarat. There is no evidence before the Court to confirm when it was that the applicant actually first arrived in Australia, with the assistance of a Gujarati interpreter this morning, the applicant has informed the Court that it was in 2009 and in the absence of any submission to the contrary or evidence to the contrary, I am willing to accept that that is the case. The applicant arrived in Australia in 2009. There is no evidence as to what precise visa he had at that point in time, what the Court does have is evidence that the applicant’s last substantive visa had ceased to be in effect on 30 August 2012.
The matter that is before the Court today relates to an application made by the applicant on 16 May 2016, so almost four years after his last substantive visa had ceased to be in effect – the applicant applied for a medical treatment visa. The particulars contained in the application itself of course are contained in the Court book, which is exhibit 1. Under question 18, which is:
“Briefly describe the medical treatment in Australia you have arranged and…

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: [2018] FCCA 863
Decision Date: 22 February 2018

CaseChat Overview and Summary

In *Chaudhari v Minister for Immigration*, the applicant, Mr Chaudhari, 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 decision was affected by an error of law.

The primary legal issue before the Court was whether the delegate of the Minister had failed to consider relevant considerations and had taken into account irrelevant considerations when assessing Mr Chaudhari's claims for protection. Specifically, the Court was asked to determine if the delegate had adequately considered the evidence of past persecution and the risk of future persecution in the applicant's country of origin, and whether the delegate had improperly relied on information that was not before the Minister at the time of the decision.

Judge Howard found that the delegate had indeed failed to consider crucial evidence relating to Mr Chaudhari's past experiences and the potential for future harm. The Court reasoned that a failure to give proper weight to all relevant evidence, and the consideration of extraneous material, constituted an error of law. The legal principle applied was that administrative decision-makers must undertake a comprehensive assessment of all evidence presented and must not be influenced by information that is not properly before them.

Consequently, the Court quashed the Minister's decision and remitted the matter to the Minister for redetermination according to law.

Orders