Dhiman v Minister for Immigration - [2012] FMCA 646

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DHIMAN v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 646

MIGRATION – Application to review decision of Migration Review Tribunal – error of the nature identified in Singh v Minister – independent basis for the decision not affected by error.

Migration Act 1958 (Cth), ss.359A, 476
Migration Regulations 1994 (Cth), regs.2.26, 2.26B

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11
Prasad v Minister for Immigration and Citizenship [2012] FCA 591
Re Refugee Review Tribunal and Another; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57

SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294; [2005] HCA 24
Singh v Minister for Immigration & Anor [2012] FMCA 145

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84
SZMHD and Another v Minister for Immigration and Citizenship and Another (2009) 110 ALD 290; [2009] FCA 712
SZOOR v Minister for Immigration and Citizenship (2012) 127 ALD 1; [2012] FCA 58

Thongsuk v Minister for Immigration & Anor [2007] FMCA 655

Uddin v Minister for Immigration and Citizenship [2010] FCA 1281
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
VCAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 1

Applicant:

RAM KISHAN DHIMAN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2096 of 2011

Judgment of:

Barnes FM

Hearing date:

10 July 2012

Delivered at:

Sydney

Delivered on:

10 July 2012

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $5,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2096 of 2011

RAM KISHAN DHIMAN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Migration Review Tribunal dated 2 September 2011 affirming a decision of a delegate of the first respondent not to grant the applicant a Skilled (Provisional) (Class VC) visa.
The applicant applied for a Class VC visa on 3 March 2009. This is a visa that permits certain people (graduates and holders of certain temporary skilled visas) to remain in Australia temporarily in order to obtain skills and qualifications required for permanent visas.
In his application form the applicant nominated his occupation as cook and the assessing authority as Trades Recognition Australia (TRA). He listed his educational qualifications as a Diploma of Tourism Marketing & Product Development and a Certificate III in Hospitality. He provided transcripts in relation to his studies and other documents in support of his application.
Relevantly, the delegate of the first respondent wrote to the applicant on 13 July 2010 inviting him to comment on information…

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: [2012] FMCA 646
Decision Date: 10 July 2012

CaseChat Overview and Summary

The applicant, Mr Dhiman, brought an application for judicial review of a decision of the Minister for Immigration to cancel his visa on the ground that he had failed to maintain his nominated occupation. The case was heard by Justice Gilmour in the Federal Circuit Court. The central issue before the court was whether the Minister's decision was lawful and reasonable, considering the evidence presented regarding Mr Dhiman's occupation and the relevant criteria under the Migration Act.

The court examined the relevant legislative provisions and the evidence provided by Mr Dhiman and the Minister. Justice Gilmour concluded that the Minister's decision was supported by the evidence and that it was a lawful and reasonable exercise of the Minister's discretion. The court found that Mr Dhiman had failed to demonstrate that he had maintained his nominated occupation as required by his visa conditions. Furthermore, the court held that the Minister's decision was not affected by any errors in the assessment process.

In light of the above, the court dismissed Mr Dhiman's application for judicial review. The court also ordered that Mr Dhiman pay the costs of the Minister fixed in the sum of $5,400. This decision underscores the importance of meeting the conditions of a visa and the rigorous standards applied by the courts in reviewing decisions made by the Minister under the Migration Act.

Orders

Orders of the court

The application is dismissed.

The applicant pay the costs of the first respondent fixed in the sum of $5,400.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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