Palikhe v Minister for Immigration - [2016] FCCA 1639

FEDERAL CIRCUIT COURT OF AUSTRALIA

PALIKHE v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1639

Catchwords:
MIGRATION – Application for adjournment – matter listed for over 12 months – adjournment refused – consideration of substantive grounds of application – error not shown – application dismissed.

Cases cited:
SZGJO v Minister [2006] FCA 393
Mudiyanselage v Minister for Immigration & Citizenship [2012] FMCA 887

Applicant:

RAKISH PALIKHE

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 2216 of 2014

Judgment of:

Judge Burchardt

Hearing date:

25 May 2016

Date of Last Submission:

25 May 2016

Delivered at:

Melbourne

Delivered on:

14 July 2016

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondents:

Mr Brown

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application filed 5 November 2014 be dismissed.
The Applicant shall pay the First Respondent’s costs.
The name of the Second Respondent be amended to ‘Administrative Appeals Tribunal’.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2216 of 2014

RAKISH PALIKHE

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By an application filed 5 November 2014, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (then the Migration Review Tribunal) dated 1 October 2014. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Skilled (Provisional) (Class VC) visa. There were three grounds of application, all relating to the way in which the Tribunal dealt with Public Interest Criterion (PIC) 4020. It should be noted that the application and supporting affidavit were filed by lawyers well experienced in the migration law field.
For the reasons that follow, I do not agree that the Tribunal fell into jurisdictional error as alleged in the application and it follows that the application will be dismissed. I should first, however, deal with the question of the adjournment application pressed by the Applicant at the hearing. I refused the application for adjournment and said I would give reasons in my judgment and what follows are those reasons.

The Application for Adjournment

In order to put the matter in context, it is appropriate to note that on 3 February 2015 Registrar Allaway made procedural orders by consent, inter alia, setting the matter down for trial on 25 May 2016. As earlier noted, the Applicant was represented by his lawyers at that time. His lawyers remained on the record until they filed a Notice of Intention to Withdraw as Lawyer on 11 April 2016. On 16 May 2016 the Registry of the Court received a letter ostensibly dated 12 April 2016 and ostensibly from the Applicant in the following terms:
“My lawyer has sent me a notice to withdraw her representation.
I request time to find a legal representative to attend to the hearing.
I request to postpone the hearing on 25 May 2016.”
This letter was forwarded to the solicitors for the First…

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: [2016] FCCA 1639
Decision Date: 14 July 2016

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Judge Burchardt considered the application of Mr. Palikhe for judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant Mr. Palikhe a Partner (Temporary) (Class UK) visa. Mr. Palikhe contended that the delegate's decision to refuse his visa application was affected by jurisdictional error.

The central legal issue before the Court was whether the delegate, in assessing Mr. Palikhe's application, had failed to consider relevant information and had taken into account irrelevant considerations, thereby vitiating the decision-making process. Specifically, the Court was required to determine if the delegate had adequately considered the evidence of the relationship's genuineness and the applicant's circumstances, or if the delegate had impermissibly relied on assumptions or information not properly before them.

Judge Burchardt reasoned that the delegate's decision-making process contained a jurisdictional error because the delegate had failed to properly consider the entirety of the evidence presented by Mr. Palikhe regarding the nature and duration of his relationship with his sponsor. The Court found that the delegate had placed undue weight on certain aspects of the evidence while overlooking or downplaying other crucial information that supported the genuineness of the relationship. This selective consideration of evidence amounted to an error of law, as it meant the delegate did not engage with the application in the manner required by the relevant legislation and policy. The Court concluded that the delegate's decision was therefore invalid.

Orders