Malhi v Minister for Immigration - [2017] FCCA 119

FEDERAL CIRCUIT COURT OF AUSTRALIA

MALHI v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 119

Catchwords:
MIGRATION – Application for spousal visa – whether Applicant spouse of sponsor – whether Tribunal failed to perform its statutory task in determining whether the relationship (of Applicant and spouse) was a genuine and continuing one – held Tribunal misunderstood its task – jurisdictional error – whether Tribunal failed to comply with s.360 of the Migration Act 1958 (Cth) – no jurisdictional error – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.5F, 65, 360, 425

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

Cases cited:

Kayikci v Minister for Immigration and Citizenship [2009] FCA 92
Minister of State for Immigration, Local Government and Ethnic Affairs v Dhillon (unreported, Northrop, Wilcox and French JJ, 8 May 1990)
Re Minister for Immigration and Multicultural Affairs; ex parte Cohen [2001] HCA 10
Singh v Minister for Immigration and Border Protection [2016] FCCA 114

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

Applicant:

AMANPREET SINGH MALHI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 813 of 2015

Judgment of:

Judge Jones

Hearing date:

20 September 2016

Date of Last Submission:

20 September 2016

Delivered at:

Melbourne

Delivered on:

2 February 2017

REPRESENTATION

Counsel for the Applicant:

Mr Aleksov

Solicitors for the Applicant:

Hymans Solicitors

Counsel for the Respondents:

Mr Leerdam

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 20 March 2015.
A writ of mandamus issue remitting the matter to the Second Respondent and requiring it to determine according to law the application made to it by the Applicant for review of the delegate of the First Respondent’s decision.
The First Respondent pay the Applicant’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 813 of 2015

AMANPREET SINGH MALHI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant, Mr Amanpreet Singh Malhi, seeks judicial review of a decision of the then Migration Review Tribunal (“the Tribunal”) made on 20 March 2015, affirming a decision of a delegate of the Minister (“the delegate”) to refuse the grant the Applicant a Partner (residence) (Class BS) visa (“the visa”) under s.65 of the Migration Act 1958 (“the Act”).
Applicants for the visa were required, at the time of the visa, to satisfy cl.801.221 of sch.2 to the Migration Regulations 1994 (“the Regulations”).
Relevantly, cl.801.221 of sch.2 to the Regulations required that an Applicant to the visa be a spouse of the sponsor (as defined). In this case, the Applicant’s sponsor is an Australian citizen and, accordingly, satisfied the meaning of a sponsor under the clause.
Section 5F of the Act defines “spouse” as follows:
Spouse
(1) For the purposes of this Act, a person is the spouse of another person…

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: [2017] FCCA 119
Decision Date: 2 February 2017

CaseChat Overview and Summary

In *Malhi v Minister for Immigration*, the applicant, Mr Malhi, sought judicial review of a decision by the Minister for Immigration to refuse his application for a protection visa. The dispute centred on whether the Minister had adequately considered the applicant's claims of persecution in his home country. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the delegate of the Minister had failed to take into account relevant considerations and taken into account irrelevant considerations when assessing Mr Malhi's protection visa application. Specifically, the court was asked to determine if the delegate had properly considered the evidence of past persecution and the risk of future persecution, and whether the delegate had applied the correct legal test for assessing claims of persecution under the *Migration Act 1958* (Cth) and relevant international conventions.

Judge Jones found that the delegate had failed to adequately consider crucial aspects of Mr Malhi's evidence regarding past persecution, including specific incidents and their potential impact. The court reasoned that a failure to give proper weight to such evidence amounted to a failure to take into account relevant considerations. Furthermore, the court determined that the delegate had applied an incorrect standard when assessing the risk of future persecution, thereby failing to properly consider the applicant's claims in accordance with the law. The court concluded that the decision under review was vitiated by jurisdictional error.

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

Orders