DHIMAL v Minister for Immigration - [2016] FCCA 1094

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHIMAL & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1094

Catchwords:
MIGRATION – Judicial review – decision of former Migration Review Tribunal – refusal of Regional Employer Nomination (Class RN) subclass 187 visa – whether applicant had required qualification for occupation of Cook – whether denial of procedural fairness – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), Part 5, Division 5, s.476

Migration Regulations 1994 (Cth), reg.1.03, Schedule 2, cll.187.111, 187.234

Cases cited:
ANR15 v Minister for Immigration & Anor [2016] FCCA 988
El Ess v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1038; (2004) 142 FCR 43
Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412
Minister for Immigration & Multicultural Affairs v Yusuf[2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Plaintiff S157/2002 v Commonwealth [2003] HCA 2, (2003) 211 CLR 476, (2003) 77 ALJR 454, (2003) 195 ALR 24; (2003) 72 ALD 1
Seema v Minister for Immigration & Citizenship [2012] FCA 257; (2012) 203 FCR 537; (2012) 126 ALD 301
SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62
X v Minister for Immigration & Multicultural Affairs [2002] FCA 56; [2002] FCAFC 3; (2002) 116 FCR 319; (2002) 67 ALD 355

First Applicant:

MONIKA DHIMAL

Second Applicant:

LILARAJ SHARMA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 273 of 2015

Judgment of:

Judge Antoni Lucev

Hearing date:

29 April 2016

Date of Last Submission:

29 April 2016

Delivered at:

Perth

Delivered on:

10 May 2016

REPRESENTATION

For the Applicant:

No appearance

Counsel for the First Respondent:

Mr P Macliver

For the Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS (made on 29 April 2016 as amended)

The application be dismissed.
The applicants pay the first respondent’s costs in the sum of $6825 by 29 May 2016.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 273 of 2015

MONIKA DHIMAL

First Applicant

LILARAJ SHARMA

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Orders made

On 29 April 2016 the Court made the following orders in this matter which, following amendment, are as follows:
1.The application be dismissed.
2.The applicants pay the first respondent’s costs in the sum of $6825 by 29 May 2016.
The Court also indicated at the time of making the orders that it would publish Reasons for Judgment from Chambers at a later time. These are those Reasons for Judgment.

Introduction

On 24 June 2015 the first and second applicants (“first applicant”, “second applicant” and together “the applicants” respectively) lodged an application for judicial review (“Judicial Review Application”) pursuant to…

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 1094
Decision Date: 10 May 2016

CaseChat Overview and Summary

In *Dhiman v Minister for Immigration*, the applicant, Mr Dhiman, 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 the applicant's claims of persecution in his home country. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the decision-maker had failed to consider relevant considerations, specifically the applicant's claims of past persecution and the risk of future persecution, when assessing his Protection visa application. This involved determining whether the decision-maker had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth), particularly concerning the assessment of claims for protection.

Judge Lucev found that the delegate had failed to properly consider the applicant's evidence regarding past persecution. The Court reasoned that the delegate's assessment of the risk of future persecution was therefore flawed, as it did not adequately take into account the established facts of past harm. The legal principle applied was that a decision-maker must consider all relevant evidence and claims put forward by an applicant for a Protection visa, and that a failure to do so renders the decision invalid.

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

Orders