Dhawan v Minister for Immigration - [2016] FCCA 3359

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHAWAN v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3359

Catchwords:
MIGRATION – Judicial review application – employer nominated visa ‑ Employer Nomination (Residence) (Class BW) visa – nominated employer no longer in business – whether procedural unfairness – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.359AA, 476

Migration Regulations 1994 (Cth), reg.5.19(2), c1l.856.213(a) and (b), 856.221

Cases cited:

Babar & Ors v Minister for Immigration and Anor [2016] FCCA 1521

Islam v Minister for Immigration and Border Protection [2015] FCCA 617 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1

Applicant:

SANGEETA DHAWAN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 4 of 2016

Judgment of:

Judge Lucev

Hearing date:

21 December 2016

Date of Last Submission:

21 December 2016

Delivered at:

Perth

Delivered on:

23 December 2016

REPRESENTATION

For the Applicant:	No appearance
Counsel for the First Respondent:	Mr E Solana

For the Second Respondent:	Submitting appearance, save as to costs
Solicitors for the Respondents:	Sparke Helmore

ORDERS (as made on 21 December 2016)

The application be dismissed.
The applicant pay the first respondent’s costs in the sum of $5800 by 21 January 2017.
Written reasons for judgment be published electronically from Chambers at a later date.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 4 of 2016

SANGEETA DHAWAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, Sangeeta Dhawan, has filed an application (“Judicial Review Application”) seeking review under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision, made on 16 December 2015, is at Court Book (“CB”) 352-354. The Tribunal Decision affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) not to grant the applicant an Employer Nomination (Residence) (Class BW) visa (“Residence Visa”).

Orders made

The applicant did not attend the hearing by the Court of her Judicial Review Application. Having read the relevant papers, and being satisfied that the applicant had been notified of the date and time of the hearing by the Court, and the matter having been called outside the hearing room, the Court made the following orders:
(1) The application be dismissed.
(2) The applicant pay the first respondent’s costs in the sum of $5800 by 21 January 2017.
(3)Written reasons for judgment be published electronically from Chambers at a later date.
What follows are the reasons for judgment referred to in order 3 of the orders set out above.

Background prior to the Tribunal Decision

The background prior to the Tribunal Decision is as follows:
a)the applicant, a citizen of India, lodged an application for the Residence Visa on 8 September 2011: CB 1-21;
b)on…

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: [2016] FCCA 3359
Decision Date: 23 December 2016

CaseChat Overview and Summary

In *Dhawan v Minister for Immigration*, the applicant, Mr. Dhawan, sought judicial review of the Minister for Immigration's decision to refuse his application for a partner visa. The dispute centred on whether the Minister had adequately considered certain evidence provided by Mr. Dhawan in support of his application. The matter came before Justice Lucev of the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had failed to take into account relevant considerations, specifically evidence relating to the applicant's alleged fear of persecution in his home country, when assessing the genuineness of the relationship for the purposes of the partner visa. This involved determining the scope of the Minister's duty to consider all relevant information presented by an applicant.

Justice Lucev reasoned that the delegate's decision-making process, as evidenced by the reasons provided, did not demonstrate a proper consideration of the applicant's evidence concerning his fear of persecution. The Court found that this evidence was directly relevant to the assessment of the genuineness of the relationship, as it provided a context for why the applicant might have sought to establish a genuine relationship with his partner. The Court applied the principle that a failure to consider relevant material can render a decision legally unreasonable.

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

Orders