Sachin v Minister for Immigration - [2016] FCCA 2815

FEDERAL CIRCUIT COURT OF AUSTRALIA

SACHIN v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2815

Catchwords:
MIGRATION – Review of former Migration Review Tribunal decision – cancellation of a higher education visa – whether the Tribunal overlooked an integer of the applicant’s claims or took account of an irrelevant consideration considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.116

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
ReDrake and Minister for Immigration (No 2) (1979) 2 ALD 634
SZTBJ v Minister for Immigration [2015] FCCA 580
WAEE v Minister for Immigration (2003) 236 FCR 593

Applicant:

SACHIN SACHIN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1268 of 2015

Judgment of:

Judge Driver

Hearing date:

2 November 2016

Delivered at:

Sydney

Delivered on:

21 November 2016

REPRESENTATION

Solicitors for the Applicant:

Mr R Turner of Turner Coulson Immigration Lawyers

Solicitors for the Respondents:

Mr K Eskerie of Sparke Helmore

ORDERS

The application as amended on 24 June 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1268 of 2015

SACHIN SACHIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant (Mr Sachin) seeks judicial review of a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) made on 16 April 2015. The Tribunal affirmed a decision of a delegate of the Minister to cancel Mr Sachin’s subclass 573 Higher Education Sector visa. Mr Sachin is aggrieved by the Tribunal decision because he considers that the Tribunal improperly placed weight on an issue of non compliance enlivening the Tribunal’s discretion to cancel the visa and because the Tribunal failed to make any finding on issues raised by Mr Sachin concerning his former migration agent.
The following statement of background facts is derived from the submissions of the parties.
Mr Sachin was born on 15 August 1994 in India and is a citizen of that country[1].
[1] Court Book (CB) 1
On 11 August 2013, Mr Sachin applied for a student visa sub class 573[2].
[2] CB 1
On 21 December 2013, that visa was granted[3].
[3] CB 41
On 24 October 2014, a delegate of the Minister (delegate) sent Mr Sachin a Notice of Intention to Consider Cancellation of Mr Sachin’s Higher Education Sector (subclass 573) visa by reason of his non compliance with condition 8516 of clause 573.231 or 573.223(1A) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations)[4]. Mr Sachin provided a response to the delegate on 28 October 2014[5]. On 8 January 2015, the delegate decided to cancel Mr Sachin’s visa on the basis that Mr Sachin had breached condition 8516[6]. On 12 January 2015, Mr Sachin applied to the Tribunal for review of the delegate’s decision[7]. On 16 April 2015, following a hearing on the same day[8], the Tribunal affirmed the decision under review[9].
[4] CB 48-52

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 2815
Decision Date: 21 November 2016

CaseChat Overview and Summary

Sachin (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse his application for a Protection visa. The applicant, who is from Iran, claimed to fear persecution upon return to his home country due to his alleged involvement with a political organisation. The matter came before Judge Driver of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had properly considered and applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) when assessing the applicant's claims for protection. Specifically, the Court was required to determine if the delegate had made an error in assessing the applicant's credibility and in determining whether he would be at real risk of persecution should he be returned to Iran.

Judge Driver found that the delegate had failed to adequately consider crucial aspects of the applicant's evidence, particularly concerning his alleged political affiliations and the reasons for his departure from Iran. The Court held that the delegate's assessment of the applicant's credibility was flawed because it did not properly engage with the entirety of the evidence presented, including documentary and oral testimony. The legal principle applied was that a decision-maker must undertake a comprehensive and balanced assessment of all relevant evidence to determine if a real chance of persecution exists, and that a failure to do so constitutes an error of law.

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

Orders