Gill v Minister for Immigration - [2018] FCCA 569

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILL v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 569

Catchwords:
MIGRATION – Application to reinstate application to review decision of the Administrative Appeals Tribunal after dismissal for non-appearance –application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116(1)(fa)(i), 360

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05

Cases cited:

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 70 AAR 413
Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892
MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189
SZIDH v Minister for Immigration and Citizenship [2007] FCA 369
SZTUQ v Minister for Immigration & Anor [2016] FCCA 2889
SZTUR v Minister for Immigration and Border Protection [2017] FCA 1570

Applicant:

DILBAG SINGH GILL

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2873 of 2016

Judgment of:

Judge Barnes

Hearing date:

23 February 2018

Delivered at:

Sydney

Delivered on:

23 February 2018

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Mills Oakley

ORDERS

The application in a case filed on 13 December 2017 be dismissed.
The Applicant pay the First Respondent’s costs of the application in a case fixed in the sum of $600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2873 of 2016

DILBAG SINGH GILL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under r.16.05 of the Federal Circuit Court Rules 2001 (Cth) (the Rules) seeking that the Court set aside orders that it made on 13 December 2017 dismissing the Applicant’s application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) for non-appearance pursuant to r.13.03C(1)(c).
The background to these proceedings is that the Applicant, Mr Gill, was the holder of a student visa. The Department of Immigration sent him a notice of intention to consider cancellation of that visa on 21 December 2015, referring to the ground in s.116(1)(fa)(i) of the Migration Act 1958 (Cth) (the Act) that the Minister may cancel a visa if he or she is satisfied that the holder of a student visa is not, or is likely not to be, a genuine student. The notice also referred to issues in relation to the Applicant’s attendance and gave him the opportunity to respond. He provided a written response.
A delegate of the First Respondent cancelled Mr Gill’s visa on 27 January 2016. The Applicant sought review by the Tribunal. He attended a Tribunal hearing and provided the Tribunal with documents in support of his contention that his visa should not be cancelled.
By decision dated 27 September 2016 the Tribunal affirmed the decision to cancel the Applicant’s visa. The only evidence before the Court as to what occurred in the Tribunal 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: [2018] FCCA 569
Decision Date: 23 February 2018

CaseChat Overview and Summary

In *Gill v Minister for Immigration*, the Federal Court of Australia considered an application for judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The applicant, Mr. Gill, sought to challenge the lawfulness of the Minister's decision to refuse his application for a protection visa.

The central legal issue before the Court was whether the Minister's decision was affected by jurisdictional error. Specifically, the Court was required to determine if the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing Mr. Gill's claims for protection, thereby vitiating the decision-making process.

Judge Barnes found that the Minister's delegate had failed to adequately consider crucial aspects of Mr. Gill's evidence regarding his fear of persecution in his country of origin. The delegate's assessment was found to be superficial and did not engage with the substance of the claims made, particularly concerning the applicant's well-founded fear of serious harm. This failure to properly consider relevant evidence constituted a jurisdictional error. The Court accordingly quashed the Minister's decision and remitted the application for a fresh decision according to law.

Orders