Prasad v Minister for Immigration - [2020] FCCA 2131

FEDERAL CIRCUIT COURT OF AUSTRALIA

PRASAD v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2131

Catchwords:
MIGRATION – Application for Partner visa – failure by applicant to produce documents relevant to a consideration as to whether character test criteria had been satisfied or not – no jurisdictional error on the part of the Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth), s. 234

Migration Regulations 1994 (Cth), rr. 2.03AA, 2.03AA(2)(a), Sch. 2. cl

100.222, Sch. 4. cl. 4001

Cases cited:

Kholi v Minister for Immigration and Border Protection [2018] FCA 540
AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261 FCR 503
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant:

VINESH PRASAD

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 15 of 2020

Judgment of:

Judge Egan

Hearing date:

31 July 2020

Date of Last Submission:

31 July 2020

Delivered at:

Brisbane

Delivered on:

4 August 2020

REPRESENTATION

Counsel for the Applicant:

Mr Jones

Solicitors for the Applicant:

Cornerstone Law Offices

Counsel for the First Respondent:

Mr Psaltis

Solicitors for the First Respondent:

Clayton Utz

Second Respondent:

Submitting appearance save as to costs

ORDERS

The Further Amended Application for review filed on 30 April 2020 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 15 of 2020

VINESH PRASAD

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicant is a citizen of Fiji who applied for a Partner (Migrant) (Class BC) Subclass 100 visa on 16 May 2011 on the basis of his relationship with his sponsor.
Before a decision was made on the applicant’s visa application by a delegate of the Minister, a letter dated 21 August 2017 [1] was sent by the department to the applicant, an attachment to which requested certain details from the applicant. That letter relevantly contained the following:
[1] Court Book (CB) pp. 262 – 270.
“Request Detail
Character requirements – Australian Federal Police (AFP) National Police Check
Information before the Department indicates that the National Police Certificate from the Australian Federal Police which you have submitted has not been applied for in all names you have used. Kindly therefore arrange for a new ‘Full Disclosure’ National Police Certificate application with the Australian Federal Police immediately in all names used and known by (including the names listed in your passport).”
It was conceded by Counsel for the applicant that the applicant had failed to provide the requested details to the department relating to whether or not the applicant had a criminal history. [2]
[2] CB p. 318.
On 5 December 2017, a delegate of the…

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: [2020] FCCA 2131
Decision Date: 4 August 2020

CaseChat Overview and Summary

The applicant, Mr. Prasad, sought judicial review of a decision made by the Minister for Immigration, which affirmed a decision to refuse his visa application. The dispute centred on whether the Minister's delegate had properly considered all relevant information when making the decision to refuse the visa. The matter came before Judge Egan of the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the delegate's decision was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate had failed to take into account a relevant consideration, namely, a letter from the applicant's employer which provided crucial details about his employment history and the nature of his work. The applicant contended that the delegate's failure to acknowledge or give weight to this letter amounted to a failure to consider a relevant matter, thereby vitiating the decision.

Judge Egan reasoned that the delegate's decision-making process must demonstrate that all relevant considerations were taken into account. The delegate's written reasons for decision did not refer to the employer's letter, nor did they indicate that its contents had been considered. In the absence of any evidence to the contrary, the Court inferred that the letter had not been considered. This failure to consider a relevant document, which was central to the applicant's case, constituted a jurisdictional error. The Court applied the principle that a failure to consider a relevant consideration is a ground for setting aside an administrative decision.

Consequently, Judge Egan ordered that the decision of the Minister for Immigration be set aside. The matter was remitted to the Minister for redetermination according to law.

Orders