Nazir v MIBP - [2018] FCCA 861

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAZIR v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 861

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5CB, 5F

Federal Circuit Court Rules 2001 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration v Dunne [1999] FCA 204

Minister for Immigration v Sandhu [2016] FCA 130
Waensila v Minister for Immigration [2016] FCAFC 32; (2016) 241 FCR 121

Applicant:

QASIM NAZIR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1986 of 2017

Judgment of:

Judge Driver

Hearing date:

10 April 2018

Delivered at:

Sydney

Delivered on:

10 April 2018

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr P Knowles

Solicitors for the Respondents:

DLA Piper

INTERLOCUTORY ORDERS

Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1986 of 2017

QASIM NAZIR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction and background

The applicant, Mr Nazir, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 26 May 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Nazir a partner visa.
Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 3 April 2018.

Procedural history

Mr Nazir is a male citizen of Pakistan.[1] After several previous visits, he arrived most recently in Australia on 25 May 2010. He lodged an application for a different class of visa on 25 August 2010, which was refused and ultimately the subject of unsuccessful applications for merits and judicial review.[2]
[1] Court Book (CB) 7.
[2] CB 618 at [12].
After lodging an invalid application for a partner visa, Mr Nazir was ultimately granted a waiver of the “no further stay condition” on 23 August 2013.[3] He subsequently made a valid application for a partner visa on 23 December 2013.[4] Mr Nazir’s visa application was sponsored by his partner, Ms Ranjanna Nam (aka Ranjanna Murray), a citizen of New Zealand.[5]
[3] CB 1-5.
[4] CB 6-34. The copy of the visa application in the court book bears stamps indicating the document was received by the Minister’s Department on 28 May 2013, 10 December 2013 and 20 December 2013 (CB 6). The delegate (CB 141) and the Tribunal (CB 618 at [12]) referred to the application being made on 23 December 2013, which is the date adopted in these submissions.
[5] CB 26.
The application was refused by the delegate on 9 August 2016.[6] The delegate found that…

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.

Continue reading Nazir v MIBP

Details

AGLC: Nazir v MIBP [2018] FCCA 861
Case: [2018] FCCA 861
Decision Date: 10 April 2018

CaseChat Overview and Summary

In *Nazir v MIBP*, the applicant, Mr Nazir, sought judicial review of a decision made by the Minister for Immigration and Border Protection to refuse to grant him a protection visa. The Minister's decision was based on the applicant's alleged failure to satisfy the criteria for a protection visa under section 36(2)(b)(i) of the *Migration Act 1958* (Cth), which requires a person to hold a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.

The primary legal issue before the court was whether the delegate of the Minister had erred in law by failing to adequately consider the applicant's claims regarding his fear of persecution in his country of origin. Specifically, the court was asked to determine if the delegate had properly assessed the evidence presented by the applicant and whether the delegate's adverse credibility findings were reasonably open on the material before them.

Driver J found that the delegate had failed to properly assess the applicant's claims. The delegate's adverse credibility findings were not adequately supported by the evidence and did not sufficiently engage with the specific details of the applicant's account. The court reiterated the principle that when assessing claims of persecution, decision-makers must carefully consider all available evidence, including the applicant's testimony, and provide clear and cogent reasons for any adverse credibility findings. The delegate's failure to do so constituted an error of law.

The court set aside the Minister's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders