Islam v Minister for Immigration - [2016] FCCA 304

FEDERAL CIRCUIT COURT OF AUSTRALIA

ISLAM v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 304

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Regional Employer Nomination (Permanent) (Class RN) visa – whether the Tribunal should have granted the applicant an adjournment – whether there was any utility in granting the adjournment – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994, reg. 5.19(4)(h)(ii), cl.187.223(1)(a), Schedule 1

Applicant:

MOHAMMAD ZAHIRUL ISLAM

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2649 of 2015

Judgment of:

Judge Street

Hearing date:

16 February 2016

Date of Last Submission:

16 February 2016

Delivered at:

Sydney

Delivered on:

16 February 2016

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent:

Mr G Johnson

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2649 of 2015

MOHAMMAD ZAHIRUL ISLAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 31 August 2015 affirming the decision of the delegate not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa. The applicant is a citizen of Bangladesh. He applied on 9 July 2014 for a class RN visa in the direct entry system.
It was a criteria in the grant of that visa that the position nominated in an application for approval be made by the prospective employer pursuant to reg.5.19(4)(h)(ii) of the Migration Regulations 1994 and in relation to which the declaration mentioned in reg.1114C(3)(c) and (d) of Schedule 1 of the Regulations was made in the application for the grant of the visa pursuant to cl.187.223(1)(a) of Schedule 2 of the Regulations.
The details of the nomination included in the visa application were given a reference number, type and a transaction reference. At this time, an application for nomination was lodged by the applicant’s then employer, a particular company, and the employer sought to nominate the applicant for a particular position. On 29 October 2014, the Department requested that the applicant provide further information to enable it to decide whether to grant the visa.
On the same day, the applicant was invited to comment on adverse information, being that the first nomination application had been refused. The applicant did not respond to the Department’s invitation to comment. As a consequence of the Department’s decision to refuse the nomination application, the delegate found the applicant was unable to satisfy the requirements for the grant of the visa and the application for a visa was refused.
The applicant sought review of the delegate’s decision to refuse to grant the visa and was…

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: [2016] FCCA 304
Decision Date: 16 February 2016

CaseChat Overview and Summary

Islam (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant him a visa. The dispute concerned the lawfulness of the Minister's decision, which was made under the *Migration Act 1958* (Cth). The matter came before Judge Street in the Federal Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa was affected by an error of law, specifically whether the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when making the decision. The applicant contended that the Minister's delegate had not properly considered certain information provided by the applicant, which was material to the assessment of his visa application.

Judge Street found that the delegate's assessment had indeed failed to adequately address the applicant's submissions regarding his circumstances. The Court applied the principle that a decision-maker must consider all relevant information placed before them. In this instance, the delegate's reasons for decision did not demonstrate that the applicant's specific concerns and supporting evidence had been properly weighed. Consequently, the decision was found to be vitiated by an error of law.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for reconsideration according to law.

Orders