MIBP v Dhillon

Case [2014] FCAFC 157


FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157

Citation: Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157
Appeal from: Dhillon v Minister for Immigration & Anor [2014] FCCA 552
Parties: MINISTER FOR IMMIGRATION AND BORDER PROTECTION v HARISH KUMAR DHILLON and MIGRATION REVIEW TRIBUNAL
File number: VID 276 of 2014
Judges: ALLSOP CJ, MURPHY AND PAGONE JJ
Date of judgment: 21 November 2014
Catchwords: MIGRATION – Appeal from Federal Circuit Court – application for Skilled (Residence) Class VB visa – application rejected for failure to meet public interest criterion – decision made with reference to material not provided to applicant – material suggested that applicant’s work reference was a ‘bogus document’ – whether Tribunal required or authorised to refuse applicant’s request for access to material – whether failure to provide material a breach of procedural fairness – whether applicant’s qualifications ‘closely related’ to nominated skilled occupation.
Legislation: Crimes Act 1914 (Cth)
Freedom of Information Act 1982 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Privacy Act 1988 (Cth)
Cases cited: AZADM v Minister for Immigration and Border Protection [2014] FCA 143
Bhanot v Minister for Immigration and Border Protection [2014] FCA 848
Constantino v Minister for Immigration and Border Protection [2013] FCA 1301
Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2014] FCA 25
Kandel v Minister for Immigration [2014] FCCA 1479
Khan v Minister for Immigration and Citizenship (2011) 192 FCR 173
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
Shields v Overland (2009) 26 VR 303
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712
SZNNE v Minister for Immigration and Citizenship [2010] FCA 194
SZNPB v Minister for Immigration and Citizenship [2010] FCA 61
SZNPK v Minister for Immigration and Citizenship [2009] FCA 1271
SZQAO v Minister for Immigration and Citizenship [2011] FCA 874
TEC Desert Pty Ltd v Commissioner of State Revenue (WA) (2010) 241 CLR 576
Vyas v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 281 FLR 247
Date of hearing: 25 August 2014
Date of last submissions: 2 September 2014
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 31
Counsel for the Appellant: Mr G Johnson SC
Solicitor for the Appellant: Sparke Helmore
Counsel for the First Respondent: Ms G Costello
Solicitor for the First Respondent: Da Gama Pereira & Associates Pty Ltd
Counsel for the Second Respondent: The second respondent submits save as to costs

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 276 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Appellant

AND:

HARISH KUMAR DHILLON
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGES:

ALLSOP CJ, MURPHY AND PAGONE JJ

DATE OF ORDER:

21 NOVEMBER 2014

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal…

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AGLC
MIBP v Dhillon [2014] FCAFC 157
Case
[2014] FCAFC 157
Decision Date

CaseChat Overview and Summary

The matter before the court was an appeal by the Minister of Immigration and Border Protection (MIBP) against a decision of the Federal Circuit Court. The Federal Circuit Court had set aside a decision by the Migration Review Tribunal (MRT) which had rejected an application for a Skilled (Residence) Class VB visa by Mr Dhillon. The primary issue before the court was whether the MRT had made an error in law in refusing Mr Dhillon’s application for the visa. This encompassed several questions, including whether the MRT was required or authorised to refuse Mr Dhillon’s request for access to certain material, whether the failure to provide this material constituted a breach of procedural fairness, and whether Mr Dhillon’s qualifications were “closely related” to the nominated skilled occupation.

The court found that the MRT did not err in concluding that Mr Dhillon’s qualifications were not closely related to the nominated occupation. However, the court did find that the MRT had erred in not providing Mr Dhillon with certain material to which he was entitled. This error related to the Tribunal’s failure to provide Mr Dhillon with information that was suggested to be a ‘bogus document’ in relation to his work reference. The court found that this failure constituted a breach of procedural fairness and a violation of Mr Dhillon’s entitlement to access information under s 362A of the Migration Act. The court also found that the Tribunal had erred in finding that Mr Dhillon had breached Public Interest Criterion 4020.

Accordingly, the appeal was allowed, and the orders of the Federal Circuit Court were set aside. The decision of the MRT was affirmed, with the court declaring that the MRT had erred in its decision in relation to Public Interest Criterion 4020. The appellant, MIBP, was ordered to pay the costs of the appeal and the application before the Federal Circuit Court. The court’s decision was made in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders made by the Federal Circuit Court on 28 April 2014 be set aside and in lieu thereof it is ordered that:

(a) the decision of the Migration Review Tribunal be affirmed; and

(b) for the avoidance of doubt it is declared that the Migration Review Tribunal erred in finding that the first respondent had breached Public Interest Criterion 4020, having made that finding in breach of his entitlement to access the redacted information to which he was entitled pursuant to his request made under s 362A.

3. The appellant pay the first respondent’s costs of the appeal and the application before the Federal Circuit Court.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Although the Minister established that the Tribunal did not err in finding that Mr Dhillon did not meet the “closely related” requirement, this ground was initially not part of the Minister’s appeal. It was only added as a ground during the hearing of the appeal, at the invitation of the Court. Few of the costs incurred are properly attributable to this issue.Conclusion The appeal will be allowed and the decision of the Federal Circuit Court will be set aside. The decision of the Tribunal will therefore be affirmed but, for the avoidance of doubt, the orders should record by declaration that the Tribunal erred in its decision in relation to the Public Interest Criterion 4020.

Ratio Decidendi

Legal Principle Established

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