RAHIM v Minister for Immigration - [2018] FCCA 1814

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAHIM v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1814

Catchwords:
MIGRATION – Application for judicial review – skilled work visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulation 1994, reg. 485.213

Applicant:

AQUIBUR RAHIM

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 120 of 2017

Judgment of:

Judge Riethmuller

Hearing date:

21 June 2018

Date of Last Submission:

21 June 2018

Delivered at:

Melbourne

Delivered on:

21 June 2018

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent:

Mr Tran

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The application be dismissed.
There be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 120 of 2017

AQUIBUR RAHIM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 December 2016. The decision affirmed the decision of a delegate to refuse to grant the applicant a Skilled (Provisional) (Class VC) subclass 485 visa.
The applicant had lodged his visa application with what he believed to be all of the relevant supporting documents which indicate that he had a strong case to obtain the visa that he sought.
Unfortunately, when the applicant came to the requirement to obtain an “Australian Federal Police Check” as set out in reg.485.213 to the Migration Regulations 1994 (“the Regulations”), the applicant turned to an internet search engine, Google, to identify where one obtains such a police check. The Google search provides a number of responses, a copy of which is Exhibit ‘A’ in these proceedings. Importantly, the very first response appears to be a paid advertisement by an organisation called cvcheck.com offering “Australian Police Checks”. The second entry is from what appears to be a similar commercial agency. It is only the third entry which is the Australian Federal Police (“AFP”) website.
No doubt lured by the advertisement appearing at the top of the Google search, the applicant clicked on the Australia Police Checks link and dutifully paid his $44.90 to obtain his police check. What the applicant received was a document described as a “National Police Check” which shows that he had no criminal history. The applicant did not receive the National Police Certificate that is issued by the AFP, as he had not gone to the AFP website.
Whilst there is no evidence about the organisation cvcheck.com, the certificate they issue indicates that they access the relevant databases maintained by police to identify whether or not a person has a criminal history. The cvcheck.com website does have on its page – not in particularly large font – a note that national police checks cannot be used for immigration, visa or IVF applications. I accept that the applicant did not notice that particular line in an otherwise…

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.

Keep reading for free

Create a free CaseChat account to read RAHIM v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 1814
Decision Date: 21 June 2018

CaseChat Overview and Summary

In the Federal Court of Australia, Justice Riethmuller considered the application for judicial review brought by Mr. Rahim against the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the lawfulness of the Minister's decision to refuse Mr. Rahim's application for a Protection Visa (subclass 866). Mr. Rahim alleged that the decision was vitiated by jurisdictional error.

The primary legal issue before the Court was whether the delegate of the Minister had failed to consider relevant considerations and had taken into account irrelevant considerations when assessing Mr. Rahim's claims for protection, thereby committing jurisdictional error. Specifically, the Court was required to determine if the delegate's assessment of the risk of harm Mr. Rahim would face upon return to his country of origin was adequate and lawful.

Justice Riethmuller found that the delegate's assessment had failed to properly engage with and assess the specific evidence provided by Mr. Rahim regarding the nature and extent of the persecution he feared. The delegate's reasoning was found to be superficial and did not adequately address the core elements of Mr. Rahim's claims, particularly concerning the alleged actions of state actors. This failure to properly consider relevant evidence and to provide adequate reasons for the adverse findings amounted to jurisdictional error. The Court therefore quashed the decision of the Minister.

Orders