DEVI v Minister for Immigration - [2016] FCCA 2467

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEVI & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2467

Catchwords:
MIGRATION – Where migration agent engaged in fraud – whether fraud gave rise to jurisdictional error – where applicant not eligible nor ever would be eligible for visa sought in application – whether relief sought futile.

Legislation:

Migration Act 1958 (Cth), s.98

Migration Regulations 1994 (Cth) Schedule 2 cll. 485.214; 485.221(1), 485.224, Schedule 4 cl. 4020(1), 4020(4)

Cases cited:
Kaur v MIBP; Prodduturi v MIBP [2013] FCCA 1805
Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5
Sran v MIBP [2013] FCCA 37
Singh v MIBP [2014] FCCA 1816

First Applicant:

RANI DEVI

Second Applicant:

VIRENDER KUMAR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 601 of 2015

Judgment of:

Judge Jarrett

Hearing date:

21 September 2016

Date of Last Submission:

21 September 2016

Delivered at:

Melbourne

Delivered on:

23 September 2016

REPRESENTATION

The Applicants appeared in person with the assistance of a Hindi interpreter.

Counsel for the First Respondent:

Ms Lucas

Solicitors for the First Respondent:

Australian Government Solicitor

The Second Respondent entered a submitting appearance.

ORDERS

The application filed on 25 March, 2015 be dismissed.
The applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 601 of 2015

RANI DEVI

First Applicant

VIRENDER KUMAR

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On 1 April, 2011 the first applicant and the second applicant, her spouse, applied for Skilled (Provisional) (Class VC) visas. Or at least so it seemed. On 14 April, 2012 a delegate of the first respondent refused to grant the applicants the visas. On 9 March, 2015 a migration review tribunal affirmed the delegate’s decision. The applicants now seek judicial review of the tribunal’s decision.
The visas applied for had two subclasses – subclass 485 and subclass 487. The applications were assessed by the first respondent’s delegate against the criteria for each subclass. The first applicant sought to demonstrate satisfaction of the primary criteria applicable to the grant of the requested visa. The second applicant relied upon being part of the first applicant’s family unit and did not seek to demonstrate satisfaction of any of the primary criteria for the grant of the relevant visas.
To secure the visas the first applicant needed to meet, amongst other criteria, the requirements of cl. 485.214 and cl. 485.224 of Schedule 2 to the Migration Regulations 1994 (Cth). The former required her to demonstrate that, as at the time of her visa application, she had applied for a skills assessment by a body called Trades Recognition Australia. The latter, by reference to public interest criteria 4020 (in Schedule 4 to the Regulations), required the tribunal to be satisfied that there was no evidence before the Minister that the applicant had given or caused…

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.

Continue reading DEVI v Minister for Immigration

Details

AGLC: DEVI v Minister for Immigration [2016] FCCA 2467
Case: [2016] FCCA 2467
Decision Date: 23 September 2016

CaseChat Overview and Summary

The applicant, DEVI, sought judicial review of a decision by the Minister for Immigration to refuse to grant her a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for a Convention reason. The matter came before Judge Jarrett of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. This involved determining whether the delegate had failed to properly consider the applicant's claims of persecution based on her gender and her alleged membership of a particular social group, and whether the delegate had applied the correct legal test in assessing the reasonableness of the applicant's fear.

Judge Jarrett found that the delegate had failed to adequately assess the applicant's claims regarding persecution due to her gender. The delegate's assessment was found to be superficial and did not engage with the specific evidence provided by the applicant concerning the risks she faced in her country of origin. The Court reiterated the principle that a delegate must undertake a comprehensive assessment of all relevant claims and evidence, and that a failure to do so constitutes jurisdictional error. The Court also noted that the delegate had not properly considered the possibility of the applicant being a member of a particular social group, which was a relevant consideration under the Migration Act 1958 (Cth).

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

Orders