Malik v Minister for Immigration - [2015] FCCA 1847

FEDERAL CIRCUIT COURT OF AUSTRALIA

MALIK v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1847

Catchwords:
MIGRATION – Judicial review – decision of Migration Review Tribunal – Indian citizen – student visa – bank loan documents – whether bogus documents – whether denial of procedural fairness – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), Part 5, Division 5, ss.97, s.357A, 360(1), 474, 476

Migration Regulations 1994 (Cth), Schedule 4, cl.4020, Schedule 2, cl.572.224

Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303

Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421, (2001) 65 ALD 1
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314
Patel v Minister for Immigration & Border Protection [2015] FCAFC 22
Pavuluri v Minister for Immigration & Border Protection [2014] FCA 502; (2014) 221 FCR 74; (2014) 142 ALD 256
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668

Strestha v Minister for Immigration & Anor [2013] FCCA 710

Tran v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 297

Trivedi v Minister for Immigration & Border Protection [2014] FCAFC 42; (2014) 220 FCR 169; (2014) 141 ALD 252

Applicant:

ANUJ MALIK

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

PEG 286 of 2014

Judgment of:

Judge Antoni Lucev

Hearing date:

12 February 2015

Date of Last Submission:

12 February 2015

Delivered at:

Perth

Delivered on:

10 July 2015

REPRESENTATION

For the Applicant:

In person

Counsel for the First Respondent:

Mr B Dube

For the Second Respondent:

Submitting appearance, save as to costs.

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 286 of 2014

ANUJ MALIK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The application for judicial review

This proceeding commenced on 19 September 2014 by the applicant (“Mr Malik”) filing an application under s.476 of the Migration Act1958 (Cth) (“Migration Act”) seeking judicial review (“Judicial Review Application”) of a decision of the Migration Review Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal…

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: [2015] FCCA 1847
Decision Date: 10 July 2015

CaseChat Overview and Summary

Malik (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant him a visa. The Administrative Appeals Tribunal had affirmed the Minister's decision. The applicant brought his application in the Federal Court of Australia.

The primary legal issue before the Court was whether the Tribunal had erred in law by failing to consider, or adequately consider, the applicant's submissions regarding his rehabilitation and his prospects of reoffending, in the context of the character provisions under the *Migration Act 1958* (Cth). Specifically, the Court considered whether the Tribunal had given sufficient weight to the evidence of the applicant's efforts towards rehabilitation and his remorse for past conduct when assessing whether he satisfied the 'character' requirement for the visa.

Judge Lucev found that the Tribunal had failed to adequately consider the applicant's submissions regarding his rehabilitation and prospects of reoffending. The Court reasoned that while the Tribunal was entitled to reach its own conclusion on the applicant's character, it was obliged to engage with and properly assess all relevant evidence presented by the applicant, including evidence of remorse and rehabilitation efforts. The failure to do so constituted an error of law.

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

Orders