Sadani v Minister for Immigration - [2015] FCCA 1189

FEDERAL CIRCUIT COURT OF AUSTRALIA

SADANI & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1189

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of skilled provisional visas – English language ability requirement not satisfied – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth),

Federal Circuit Court Rules 2001 (Cth)

Akhter & Ors v Minister for Immigration [2015] FCCA 35
Ajaya v Minister for Immigration and Border Protection [2014] FCA 718

First Applicant:

MITALBAHEN HARESHKUMAR SADANI

Second Applicant:

HARESHKUMAR TULSHIBHAI SADANI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 237 of 2014

Judgment of:

Judge Driver

Hearing date:

5 May 2015

Date of Last Submission:

5 May 2015

Delivered at:

Adelaide

Delivered on:

5 May 2015

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondents:

Mr K Tredrea

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

That the application filed 30 June 2014 be dismissed pursuant to r16.01 of the Federal Circuit Court Rules 2001 (Cth).
The Applicants do forthwith pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of FIVE THOUSAND, EIGHT HUNDRED DOLLARS ($5,800.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 237 of 2014

MITALBAHEN HARESHKUMAR SADANI

First Applicant

HARESHKUMAR TULSHIBHAI SADANI

Second Applicant

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex-tempore reasons settled from transcript)

This is an application to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 11 June 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants skilled provisional visas. Background facts relating to this matter are set out in the Minister’s outline of legal submissions filed on 30 April 2015.
The First Applicant (the “Applicant”) is a citizen of India and applied for a Skilled (Provisional) (Class VC) Subclass 485 (Skilled Graduate) visa (the “visa”) on 26 August 2013.[1] The Second Applicant is the spouse of the Applicant.[2] The Second Applicant’s entitlement to a visa is dependent upon the Applicant satisfying the criteria for the grant of the visa.
[1] Court Book (“CB”) p. 1 – 13
[2] CB p. 3 – 4
On 12 February 2014, a delegate of the Minister refused to grant the Applicant a visa. The delegate concluded in the Decision Record, at Court Book (“CB”) p.48 – 53 that:
“As the applicant did not provide evidence of competent English achieved in the 3 years immediately before the day of application for a Skilled – (VC 485) Graduate visa, the applicant does not satisfy the requirement for competent English as specified in Regulation 1.15C(1)(b).”[3]
[3] CB p.51.3
The Applicant applied for a review of the delegate’s decision by filing an Application for Review (the “Review”) to the Tribunal on 4 March 2014.[4] On 11 June 2014, the Tribunal affirmed the decision not to grant the Applicant a visa.[5]
[4] CB p.54 – 64
[5]…

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 1189
Decision Date: 5 May 2015

CaseChat Overview and Summary

In the Federal Court of Australia, the applicant, Mr. Sadani, challenged a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's refusal to grant Mr. Sadani a Partner (Temporary) (Class UK) visa. Mr. Sadani contended that the delegate's decision to refuse his visa application was affected by jurisdictional error.

The primary legal issue before the Court was whether the delegate, in assessing Mr. Sadani's application, had failed to consider relevant considerations and had taken into account irrelevant considerations, thereby vitiating the decision-making process. Specifically, the Court was asked to determine if the delegate's assessment of the genuineness of the relationship between Mr. Sadani and his sponsor, and the assessment of whether the relationship was a genuine one in which the parties lived together in a genuine marital relationship, were conducted in accordance with the relevant legislative provisions and principles of administrative law.

Judge Driver found that the delegate's assessment of the relationship's genuineness was flawed. The delegate had placed undue emphasis on the absence of a formal marriage certificate, despite other evidence presented by Mr. Sadani demonstrating a genuine and continuing marital relationship. The Court reiterated the principle that a formal marriage certificate is not a mandatory requirement for a Partner visa application, and that the delegate must consider all available evidence to assess the genuineness of the relationship. The delegate's failure to adequately weigh all the evidence, and their reliance on an irrelevant consideration (the absence of a certificate), constituted jurisdictional error.

Consequently, the Court quashed the delegate's decision to refuse the visa application and remitted the matter to the Minister for redetermination according to law.

Orders