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.
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…
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
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
Full text does not contain this section.
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.