Gurung v Minister for Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

GURUNG v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1649
Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal failed to take into account a relevant consideration – whether legal unreasonableness – no jurisdictional error – application dismissed.
Legislation:
Migration Act 1958 (Cth), s.476
Migration Regulations 1994 (Cth), sch.2, cl.820.211, sch.3, 3001, 3003, 3004
Cases cited:
Monakova v Minister for Immigration & Anor [2006] FMCA 849
Prempree v Minister for Immigration & Anor [2017] FCCA 220
Al Souhmarani v Minister for Immigration & Anor [2016] FCCA 2866
Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; (2016) 241 FCR 121
Minister for Aboriginal Affairs v Peko Wallsend Ltd[1986] HCA 40; (1986) 162 CLR 24
Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2000) 240 CLR 611
Applicant: RAJEEV GURUNG
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: SYG 1853 of 2016
Judgment of: Judge Nicholls
Hearing date: 27 February 2018
Date of Last Submission: 27 February 2018
Delivered at: Sydney
Delivered on: 25 June 2018

REPRESENTATION

Counsel for the Applicant: Mr O Jones
Solicitors for the Applicant: Parish Patience Immigration Lawyers
Counsel for the Respondents: Mr P Knowles
Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

  1. The application made on 12 July 2016 and amended on 21 November 2016 is dismissed.

  2. The applicant pay the first respondent’s costs set in the amount of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1853 of 2016

RAJEEV GURUNG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 12 July 2016, and amended on 21 November 2016, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 June 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a Partner (Temporary) (Class UK) visa (“the visa”) to the applicant.

  2. The evidence before the Court is a bundle of relevant documents filed by the Minister, and tendered by the applicant (“the Court Book – “CB”, “AE1”).  The applicant also filed the affidavit of Amina Youssef, solicitor, made on 2 February 2018 annexing a transcript ("T") of the applicant’s hearing before the Tribunal.  This was read into evidence at the instigation of the Minister.

Background

  1. The applicant’s written submissions drafted by counsel and filed in these proceedings on 21 November 2016, set out in detail the procedural background to the application for the visa.  It is a fair summary of these matters.  Given that the Minister considers it to be an “adequate” summary, I adopt it as background for the purposes of this judgment as follows ([2] – [8] of the applicant’s written submissions):

    “[2] The events relevant to the…

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Details
Case
[2018] FCCA 1649
Decision Date

CaseChat Overview and Summary

In *Gurung v Minister for Immigration*, the applicant, Mr Gurung, sought judicial review of a decision by the Minister for Immigration to refuse his application for a Protection visa. The dispute centred on whether Mr Gurung had established a well-founded fear of persecution for a reason prescribed by the *Migration Act 1958* (Cth).

The primary legal issue before the Federal Court was whether the delegate of the Minister had erred in their assessment of Mr Gurung's claims of persecution. Specifically, the court was required to determine if the delegate had failed to properly consider the evidence presented by Mr Gurung regarding his fear of persecution, and whether the delegate's adverse credibility findings were reasonably open on the material before them.

Judge Nicholls found that the delegate had failed to adequately consider certain aspects of the evidence, particularly concerning the applicant's alleged fear of persecution based on his political opinion. The court held that the delegate's adverse credibility findings were not adequately supported by the reasons provided, and that the delegate had not properly engaged with the entirety of the evidence. Consequently, the delegate's decision was found to be affected by jurisdictional error. The application for judicial review was therefore granted.

Orders

Orders of the court

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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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