Patel v Minister for Immigration - [2015] FCCA 2893

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2893

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – application for a Subclass 457 (Temporary Work (Skilled)) visa – sponsor’s fraud – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 116(1)(g), 116(3), 140, 140(1), 140M, 140M(1)(a), 140M(1)(d), 348

Migration Regulations 1994 (Cth), regs.2.43(1)(o), 2.43(1)(l)(iv), 2.90

First Applicant:

MANISHABEN AMRUTLAL PATEL

Second Applicant:

RAJNISH NATVARLAL PATEL

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1846 of 2014

Judgment of:

Judge Hartnett

Hearing date:

8 October 2015

Delivered at:

Melbourne

Delivered on:

8 October 2015

REPRESENTATION

The Applicants:

The First Applicant

Counsel for the respondents:

Mr Priest

Solicitors for the respondents:

Sparke Helmore

ORDERS

The name of the Second Respondent be changed to the Administrative Appeals Tribunal.
The Application filed on 11 November 2014 is dismissed.
The Applicants pay the costs of the First Respondent fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1846 of 2014

MANISHABEN AMRUTLAL PATEL

First Applicant

RAJNISH NATVARLAL PATEL

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

Before the Court is an Application filed on 11 September 2014 for judicial review of a decision made by the Second Respondent (formerly the Migration Review Tribunal) (‘the Tribunal’) on 22 August 2014 to affirm a decision by a Delegate of the First Respondent (‘the Delegate’) to cancel the First Applicant’s (‘the Applicant’) Subclass 457 (Temporary Work (Skilled)) visa (‘the visa’) under the Migration Act 1958 (Cth) (‘the Act’).
The grounds of application are as follows:-
“1. I applied for TEMPORARY WORK VISA 457 it was granted and then cancelled.
2. Then I applied to MRT for review of that decision.
3. I think MRT and department of immigration did not look at my document evidence at time of application.”
The First Respondent filed a Response dated 22 October 2014 wherein it sought dismissal of the application.
The matter proceeded before Registrar Allaway on 3 December 2014. On that date, Orders were made by consent, which included:-
“2. On or before 27 February 2015, the applicants file and serve:
a. any amended application including any additional grounds of review with complete particulars of each ground; and
b. any affidavits.
…
5. Evidence of the contents of any sound recording be presented as a transcript verified by affidavit.
6. The applicants file and serve written submissions and list of authorities 14 days before the final hearing.”
The applicants did not file any amended application in this proceeding, nor have the applicants filed any written submissions. The First Applicant indicated on the hearing of the matter this day, that she preferred to make oral submissions to the Court. She did so with the assistance of an interpreter in the Gujarati and English languages.
The First Respondent relies upon the First Respondent’s…

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 2893
Decision Date: 8 October 2015

CaseChat Overview and Summary

In *Patel v Minister for Immigration*, the applicant, Mr Patel, sought judicial review of a decision by the Minister for Immigration to refuse his application for a protection visa. The dispute concerned whether Mr Patel met the criteria for a protection visa under the *Migration Act 1958* (Cth).

The primary legal issue before the Federal Court was whether the delegate of the Minister had erred in law by failing to consider, or adequately consider, certain evidence relating to Mr Patel's claims of persecution. Specifically, the court was asked to determine if the delegate's assessment of the evidence was so unreasonable that no reasonable decision-maker could have reached the same conclusion.

Judge Hartnett found that the delegate had failed to properly consider crucial evidence that supported Mr Patel's claims. The court applied the principles of administrative law, including the requirement for a decision-maker to undertake a genuine consideration of all relevant evidence. The delegate's failure to engage with this evidence meant that the decision was vitiated by legal error.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders