Goraya v Minister for Immigration - [2018] FCCA 2017

FEDERAL CIRCUIT COURT OF AUSTRALIA

GORAYA v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2017

Catchwords:
MIGRATION – Application for judicial review – Partner (Residence) (Class BS) Visa – whether witnesses had capacity to give evidence – whether the Tribunal failed to make an obvious enquiry about a critical fact – whether the Tribunal err in concluding a marriage lacking romantic love or affection was not a genuine relationship under regs. 1.09A and 1.15A of the Migration Regulations 1994 – whether the Tribunal made an illogical or irrational conclusion – witnesses had sufficient capacity – the Tribunal did not err in failing to make enquiries – the Tribunal did not err in construing regs. 1.09A and 1.15A of the Migration Regulations 1994 – the Tribunal did not make irrational or illogical conclusions – application dismissed.

Legislation:

Migration Act 1958 (Cth), s 476
Migration Regulations 1994 (Cth), regs 1.09A, 1.15A

Cases cited:

He v Minister for Immigration and Border Protection [2017] FCAFC 206
Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5

Minister for Immigration and Citizenship v Le [2007] FCA 1318
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32

NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 983

Applicant:

DALBIR SINGH GORAYA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 490 of 2017

Judgment of:

Judge McNab

Hearing date:

13 February 2018

Date of Last Submission:

28 February 2018

Delivered at:

Melbourne

Delivered on:

26 July 2018

REPRESENTATION

The Applicant in person

Solicitors for the Applicant:

Spectre Group Law

Solicitors for the Respondents:

Mills Oakley

ORDERS

The application filed 10 March 2017 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 490 of 2017

DALBIR SINGH GORAYA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

As Corrected

Introduction

By way of an application filed 10 March 2017 the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’), dated 10 February 2017. The decision of the Tribunal affirmed the decision of a delegate of the First Respondent dated

7 July 2015 in respect of a refusal to grant the Applicant a Partner (Residence) (Class BS) Visa (‘Visa’). The Tribunal found that the Applicant and his Sponsor were not in a spousal relationship and refused a grant of a Visa for this reason.
The Applicant relies on four grounds of review, which are extracted from his originating application and replicated exactly below:
The Tribunal denied the Applicant procedural fairness and/or made an error of law because it relied on the evidence of key witnesses in the case who did not possess the requisite capacity to participate in the hearing before the Tribunal.

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 2017
Decision Date: 26 July 2018

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Judge McNab considered the application of Mr. Goraya, who sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant Mr. Goraya a visa, a decision Mr. Goraya contended was unlawful.

The central legal issue before the Court was whether the delegate of the Minister had failed to consider relevant information when assessing Mr. Goraya's visa application, specifically information pertaining to his character and criminal history. Mr. Goraya argued that the delegate had overlooked crucial documents and evidence that would have demonstrated his rehabilitation and suitability for the visa.

Judge McNab reasoned that a delegate of the Minister has a statutory obligation to consider all relevant information placed before them when making a decision on a visa application. The Court found that the delegate had indeed failed to adequately consider certain documentary evidence provided by Mr. Goraya, which was material to the assessment of his character. This failure constituted an error of law, as it meant the decision was not made in accordance with the relevant legislative framework.

Consequently, the Court quashed the Minister's decision and remitted the matter back to the Minister for reconsideration according to law.

Orders