DHINDSA v Minister for Immigration - [2014] FCCA 2451

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHINDSA v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2451

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – application for Skilled (Residence) (Class VB) Subclass 885 visa – adjournment refused – no appearance by or on behalf of the Applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.360

Migration Regulations 1994 (Cth), Reg.1.15C, Sch 2, Part 885, cls.885.21, 885.22, 885.213
Federal Circuit Court Rules 2001 (Cth), r.13.04(4), 44.12

Pakala v Minister for Immigration & Anor [2014] FCCA 145
Singh v Minister for Immigration and Border Protection [2014] FCA 185

Applicant:

SUKHJINDER SINGH DHINDSA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 814 of 2014

Judgment of:

Judge Hartnett

Hearing date:

13 October 2014

Delivered at:

Melbourne

Delivered on:

28 October 2014

REPRESENTATION

The Applicant:

No Appearance

Counsel for the respondents:

Mr Murano

Solicitors for the respondents:

Clayton Utz Lawyers

ORDERS

The application for an adjournment is dismissed.
The Application filed 2 May 2014 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 814 of 2014

SUKHJINDER SINGH DHINDSA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By way of Application filed 2 May 2014 the Applicant seeks judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) dated 2 April 2014. The Tribunal affirmed a decision of the First Respondent by his delegate (‘the delegate’) not to grant the Applicant a Skilled (Residence) (Class VB) Subclass 885 visa.
In the Response to Application filed 14 May 2014 the First Respondent opposed the Application for an order to show cause filed in this Court on 2 May 2014 on the grounds that the Tribunal decision is not affected by jurisdictional error.
By Orders made by consent pursuant to r.13.04(4) of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’) on 5 August 2014 before Registrar Allaway the application was listed for a hearing pursuant to r.44.12 of the Rules. The First Respondent has filed and served written Submissions dated 24 September 2014 in respect of this hearing but the Applicant has failed to do so (both being required to do so pursuant to the Orders made by consent). There is also before the Court on the hearing of this matter the Court Book filed 20 June 2014 which is in evidence in the proceedings.
The grounds of application for judicial review as set out in the Application filed 2 May 2014 are as follows:-
“1. I have strong grounds to prove that MRT decision was made in error.
2. I want to further provide my claims that my application for Skilled (Residence) should not be refused.”
As can be observed, there is no particularisation of the grounds in the Application and to that extent they are meaningless.
The Applicant failed to attend the hearing…

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: [2014] FCCA 2451
Decision Date: 28 October 2014

CaseChat Overview and Summary

In *Dhindsa v Minister for Immigration*, the applicant, Mr. Dhindsa, sought judicial review of a decision by the Minister for Immigration to refuse his application for a Partner (Temporary) (Class UK) visa. The dispute centred on whether the Minister had properly considered the applicant's claims of a genuine and continuing relationship with his partner, and whether the Minister had adequately addressed the specific circumstances of the relationship in accordance with the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth).

The primary legal issue before the court was whether the delegate of the Minister had erred in law by failing to undertake a proper assessment of the evidence presented by Mr. Dhindsa regarding the genuineness and continuing nature of his relationship. Specifically, the court was asked to determine if the delegate had applied the correct legal test for assessing partnership claims and whether the delegate's decision was affected by an error of fact or law, including a failure to consider relevant evidence or a failure to provide adequate reasons for the decision.

Judge Hartnett found that the delegate had failed to properly consider all the evidence before them, particularly concerning the applicant's assertions about the nature and duration of his relationship. The court reiterated the principle that a delegate must undertake a holistic assessment of the evidence presented, rather than selectively focusing on aspects that might support a negative conclusion. The delegate's reasons were found to be deficient in that they did not adequately explain how the evidence was weighed or why certain aspects were discounted, thereby failing to demonstrate a proper application of the relevant legal criteria for assessing a genuine and continuing relationship.

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

Orders