Rathor v Minister for Immigration - [2015] FCCA 1184

FEDERAL CIRCUIT COURT OF AUSTRALIA

RATHOR v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1184

Catchwords:
MIGRATION – Application for judicial review of decision of Migration Review Tribunal (Tribunal) – applicant requests Tribunal to provide the applicant time to seek a re-mark of the last IELTS test the applicant had undertaken or to undertake a fresh IELTS test – Tribunal decides not to give the applicant the time requested – whether Tribunal acted unreasonably in deciding the application for review without giving the applicant an opportunity to seek a re-mark of his last IELTS test or to undertake a fresh IELTS test – no jurisdictional error.

Legislation:

Migration Regulations 1994 (Cth), regs.1.15C, 1.15C(a)
Migration Regulations 1994 (Cth), Schedule 2, cls.485.215

Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417
Minister for Immigration and Border Protection v Li (2013) 249 CLR 332
Nayak v Minister for Immigration & Anor [2015] FCCA 688

Applicant:

GURNAM SINGH RATHOR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1345 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

22 April 2015

Date of Last Submission:

24 February 2015

Delivered at:

Sydney

Delivered on:

8 May 2015

REPRESENTATION

Applicant in person.

Solicitors for the Respondents:

Mr A Markus of

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1345 of 2014

GURNAM SINGH RATHOR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant seeks judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Skilled (Provisional) (Class VC) visa (visa).

The Tribunal’s decision and reasons

The Tribunal affirmed the delegate’s decision because it was not satisfied the applicant had “competent English” as required by cl.485.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), as those regulations stood at the time the applicant applied for the visa. At that time, the necessity of demonstrating competency in English was a criterion that had to be satisfied at the time of application.
As at 13 April 2010, when the applicant applied for the visa, reg.1.15C of the Regulations provided that a person has “competent English” if the person satisfies the Minister that he or she:
(a)has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(i)an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
(ii)a score:
(A) specified by the Minister in an instrument in writing for this sub-subparagraph; and
(B) in a language test specified by the Minister in the instrument; or
(b)holds a passport of a type specified by the Minister in…

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 1184
Decision Date: 8 May 2015

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Judge Manousaridis considered the application of Mr. Rathor for judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant Mr. Rathor a protection visa.

The primary legal issue before the Court was whether the Minister's delegate had erred in law by failing to consider all the relevant evidence presented by Mr. Rathor in support of his protection visa application. Specifically, the Court was asked to determine if the delegate had adequately assessed the risk of persecution Mr. Rathor claimed he would face if returned to his country of origin, taking into account all the information provided.

The Court's reasoning focused on the principles of administrative law, particularly the requirement for decision-makers to undertake a comprehensive and fair consideration of all evidence. Judge Manousaridis found that the delegate had failed to properly engage with certain key pieces of evidence submitted by Mr. Rathor, which were material to the assessment of his claims. This failure amounted to an error of law, as it meant the delegate did not have regard to all relevant considerations when making the decision.

Consequently, the Court set aside the delegate's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders