Gurung v Minister for Immigration - [2018] FCCA 1649

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

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

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.
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

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…

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.

Keep reading for free

Create a free CaseChat account to read Gurung v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 1649
Decision Date: 25 June 2018

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