LAMICHHANE v Minister for Immigration - [2018] FCCA 2118

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAMICHHANE v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2118

Catchwords:
MIGRATION – Partner (residence) (class BS) (subclass 801) visa – applicant not in a genuine and continuing relationship with his sponsor as required by the visa he held – tribunal gave active, intellectual consideration to applicant’s claims – tribunal addressed each element of the regulations relevant to the grant of the visa – tribunal’s findings open to it – all grounds of review failed – many grounds lacked particulars – application dismissed.

Legislation:

Migration Act 1958, ss.5CB, 5F, 359A

Migration Regulations 1994, reg.1.15A, sch.2, cl.801.221

Cases cited:

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594

Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Citizenshipv SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60
Symons v White (Sydney Catholic Schools) [2018] FCA 949
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Applicant:

DEEPAK LAMICHHANE

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 75 of 2017

Judgment of:

His Honour Judge Wilson

Hearing date:

31 July 2018

Date of Last Submission:

31 July 2018

Delivered at:

Perth

Delivered on:

31 July 2018

REPRESENTATION

Counsel for the Applicant:

Mr J R Young

Solicitors for the Applicant:

Shamser Thapa & Associates

Counsel for the First Respondent:

Mr N Swan

Solicitors for the First Respondent:

DLA Piper Australia

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

DLA Piper Australia

ORDERS

The application filed on 11 January 2017 is dismissed.
The applicant pay the first respondent’s costs in the fixed sum of $7 206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

SYG 75 of 2017

DEEPAK LAMICHHANE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER…

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 2118
Decision Date: 31 July 2018

CaseChat Overview and Summary

The applicant, Mr Lamichhane, sought judicial review of a decision by the Minister for Immigration to refuse his application for a Protection visa. The Minister's decision was based on the applicant's alleged failure to satisfy the criteria for a Protection visa, specifically concerning the assessment of his claims for protection. The matter came before His Honour Judge Wilson in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had erred in law in their assessment of the applicant's claims for protection. This involved determining whether the delegate had properly considered all relevant information, applied the correct legal principles in assessing the risk of harm, and whether the decision was affected by jurisdictional error. Specifically, the Court was asked to consider if the delegate had failed to adequately assess the applicant's claims of persecution based on his political opinion and membership of a particular social group.

His Honour Judge Wilson found that the delegate had made a jurisdictional error by failing to properly consider and assess crucial aspects of the applicant's evidence regarding the risk of harm he faced upon return to his country of origin. The Court applied the principles of administrative law, emphasising the obligation of a decision-maker to undertake a comprehensive and fair assessment of all relevant evidence. The delegate's failure to adequately engage with the applicant's specific claims, particularly concerning the credibility and content of his evidence, led to the conclusion that the decision was vitiated by legal error.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders