Dahi v Minister for Immigration - [2018] FCCA 3148

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAHI v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3148

Catchwords:
MIGRATION – Cancellation of Return Residence (subclass 155) visa – review of decision of Administrative Appeals Tribunal – where application to Tribunal not accompanied by prescribed fee – whether the Tribunal erred in finding it had no jurisdiction – no jurisdictional error – application dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s.29

Migration Act 1958 (Cth), ss.338, 347, 348, pt.5

Migration Regulations 1994 (Cth), regs.2.55, 4.10, 4.13

Cases cited:

Anand v Minister for Immigration & Citizenship (2013) 215 FCR 562
Beni v Minister for Immigration & Border Protection [NSD 536 of 2018]
Benissa v Minister for Immigration & Border Protection [2016] FCA 76
Braganza v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 364
Brown v Minister for Home Affairs (No 2) [2018] FCA 1787
Chitrakar v Minister for Immigration & Border Protection [2016] FCCA 3224
Chitrakar v Minister for Immigration & Border Protection [2017] FCA 533

Kirk v Minister for Immigration & Multicultural Affairs (1998) 87 FCR 99

Suh v Minister for Immigration & Citizenship (2009) 175 FCR 515

Applicant:

POULAD DAHI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2145 of 2017

Judgment of:

Judge Smith

Hearing date:

17 July 2018

Date of Last Submission:

3 December 2018

Delivered at:

Sydney

Delivered on:

7 December 2018

REPRESENTATION

Solicitors for the Applicant:

Mr M Jones, Parish Patience Immigration Lawyers

Solicitors for the Respondents:

Mr A Keevers, Sparke Helmore

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2145 of 2017

POULAD DAHI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Iran. On 17 January 2011 the applicant was granted a protection visa on the basis of his fear of harm for reason of his religion, Christianity. On 17 August 2016 the applicant was granted a Return (Residence) (class BB) Resident Return (subclass 155) visa.
By letter dated 7 December 2016 a delegate of the Minister gave the applicant notice of an intention to cancel his resident return visa on the basis of information that the applicant had returned to Iran and married a Muslim which was inconsistent with the claims that formed the basis of the grant of his protection visa. The applicant did not provide any substantive response to that notice.
On 16 February 2017 a delegate of the Minister made a decision to cancel the applicant’s resident return visa for the reasons outlined in the Notice of Intention to Cancel. The notice of the cancellation decision informed the applicant that the decision to cancel could be reviewed and that an application for merits review must be given to the Administrative Appeals Tribunal within the prescribed timeframe. That timeframe required an application to be given to the Tribunal by 8 March 2017.
On 3 March 2017 the applicant lodged an application for…

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 Dahi 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: [2018] FCCA 3148
Decision Date: 7 December 2018

CaseChat Overview and Summary

In *Dahi v Minister for Immigration*, the applicant, Mr. Dahi, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant Mr. Dahi a visa, a decision Mr. Dahi contended was unlawful. The matter was heard before Judge Smith.

The central legal issue before the court was whether the Minister's decision to refuse the visa application was affected by jurisdictional error. Specifically, the court was required to determine if the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when making the decision, thereby vitiating the lawfulness of the refusal.

Judge Smith reasoned that the Minister's decision-making process must adhere to the principles of administrative law, including the obligation to consider all relevant factors and disregard irrelevant ones. The court examined the evidence before the Minister and the reasons provided for the refusal. Judge Smith found that the Minister had indeed failed to properly consider a crucial piece of evidence submitted by Mr. Dahi, which was directly relevant to the assessment of his application. This failure constituted a jurisdictional error, as it meant the Minister had not exercised the power conferred upon them according to law.

Consequently, Judge Smith quashed the Minister's decision to refuse the visa application and remitted the matter back to the Minister for reconsideration according to law.

Orders