HEMLATA v Minister for Immigration - [2014] FCCA 968

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEMLATA v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 968

Catchwords:
MIGRATION – Nominated occupation required in application for visa – whether applicant can change their mind and nominate another occupation – whether change can be made if first occupation nominated by mistake – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.55, 65, 104, 105

Migration Regulations 1994, Sch.1 sub-cl.1229(4)(b)(ii), Sch.2 cl.485.

Chen v Minister for Immigration & Anor [2011] FMCA 859
MZYMG v Minister for Immigration and Citizenship [2012] FCA 89
NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199
Patel v Minister for Immigration and Citizenship [2011] FCA 1220
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965

Applicant:

HEMLATA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 2002 of 2013

Judgment of:

Judge F. Turner

Hearing date:

8 April 2014

Date of Last Submission:

8 April 2014

Delivered at:

Melbourne

Delivered on:

29 May 2014

REPRESENTATION

Counsel for the Applicant:

Mr Langmead

Solicitors for the Applicant:

Oceania Migration Lawyers

Counsel for the Respondents:

Ms Latif

Solicitors for the Respondents:

Clayton Utz

ORDERS

The applications for judicial review filed on 21 November 2013 are dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2002 of 2013

HEMLATA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

These are applications for judicial review of the decision of the Migration Review Tribunal (the “Tribunal”) dated 1 November 2013. That decision affirmed the decision of a delegate to the Minister for Immigration & Border Protection not the grant the applicants Skilled (Provisional) (Class VC) visas.
The second named applicant is married to the first named applicant wife (Court Book “CB” pp.1 and 3).
The grounds in the application for judicial review are:
(1)Nominated occupation skills were negative from TRA and Office Manager occupation does not match with nominated occupation.
The applicable sub-class of visa for the visa applied for in this case is 485, the criteria for which are set out in cl.485 of Schedule 2 to the Migration Regulations 1994 (the “Regulations”).
Clause 485.2 sets out the Primary Criteria for this type of visa, which must be satisfied by at least one member of a family unit.
Clause 485.3 sets out the Secondary Criteria which must be satisfied by other members of the family unit.
The delegate refused the visas because the first named applicant (“the applicant”) did not satisfy cl.485.221 of Schedule 2, which at the time was as follows:
(1)“The skills of the applicant for the applicant’s nominated occupation have been assessed by the relevant assessing authority as suitable for that occupation.
(2)If the assessment mentioned in subclause (1) is made on the basis of a qualification obtained in Australia while…

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 HEMLATA 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: [2014] FCCA 968
Decision Date: 29 May 2014

CaseChat Overview and Summary

Hemlata (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse her application for a Protection Visa (class 785). The applicant, who is from Sri Lanka, claimed to fear persecution upon return to her home country due to her alleged involvement with the Liberation Tigers of Tamil Eelam (LTTE). The Minister's delegate had refused the visa application, finding that the applicant did not meet the criteria for a protection visa, specifically that she was not a person to whom Australia had protection obligations under the Migration Act 1958 (Cth). The applicant subsequently applied to the Federal Circuit and Family Court of Australia for judicial review of this decision.

The primary legal issue before the Court was whether the delegate's decision to refuse the Protection Visa was affected by jurisdictional error. This involved determining whether the delegate had properly considered the applicant's claims of persecution, particularly in relation to her alleged past membership or association with the LTTE, and whether the delegate's assessment of the risk of harm upon return to Sri Lanka was reasonable and based on relevant considerations. The Court was required to assess if the delegate had failed to take into account relevant evidence or had taken into account irrelevant considerations, or if the delegate's reasoning process was illogical or irrational.

In reaching its decision, the Court examined the delegate's assessment of the applicant's credibility and the evidence presented regarding the general country situation in Sri Lanka. The Court considered the principles of administrative law, including the requirement for decision-makers to act fairly and rationally. The Court found that the delegate had failed to adequately consider certain aspects of the applicant's evidence concerning her alleged past association with the LTTE and the potential consequences of such an association upon return to Sri Lanka. The delegate's reasoning was found to be deficient in its assessment of the risk of harm, particularly in light of the applicant's specific circumstances.

The Court concluded that the delegate's decision contained jurisdictional error. Accordingly, the Court set aside the decision of the delegate and remitted the application for a Protection Visa to the Minister for redetermination according to law.

Orders