Salopal v Minister for Immigration - [2017] FCCA 3081

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALOPAL v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 3081

Catchwords:
MIGRATION – Administrative Appeals Tribunal – subclass 866 Skilled (Residence) (Class VB) visa – public interest criterion 4020 – whether there was any evidence before the Tribunal that the applicant had submitted a bogus document – applicant providing a skills assessment from Trades Recognition Australia based on a work reference from Pastry Art Design – that employer being involved in the fraudulent work reference scheme created by Carmine Amarante.

Legislation:
Migration Act 1958, ss.5(1), 359A, 359AA, 375A
Migration Regulations 1994, Schedule 4, public interest criterion 4020

Cases cited:

Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640; [2014] FCA 640
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; (2014) 139 ALD 50; (2014) 308 ALR 280; [2014] FCAFC 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; (2013) 139 ALD 181; (2013) 297 ALR 225; (2013) 87 ALJR 618; [2013] HCA 18
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; (2009) 259 ALR 429; (2009) 83 ALJR 1123; [2009] HCA 39

Applicant:

HARPREET SINGH SALOPAL

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 1874 of 2015

Judgment of:

Judge Riley

Hearing dates:

5 October 2017 and

13 and 20 November 2017

Date of last submission:

20 November 2017

Delivered at:

Melbourne

Delivered on:

12 December 2017

REPRESENTATION

Advocate for the Applicant:

In person

Solicitors for the Applicant:

None

Counsel for the First Respondent:

Liam Brown

Solicitors for the First Respondent:

DLA Piper Australia

Counsel for the Second Respondent:

None

Solicitors for the Second Respondent:

DLA Piper Australia

ORDERS

The application filed on 14 August 2015 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1874 of 2015

HARPREET SINGH SALOPAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a subclass 866 Skilled (Residence) (Class VB) visa.
One of the criteria for the grant of the visa was that the applicant meet public interest criterion 4020. That criterion relevantly provided as follows:
(1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister … a bogus document or information that is false or misleading in a material particular in relation to:
(a)the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
(2) …
…
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate…

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: [2017] FCCA 3081
Decision Date: 12 December 2017

CaseChat Overview and Summary

In *Salopal v Minister for Immigration*, Judge Riley of the Federal Circuit and Family Court of Australia considered an application for judicial review concerning a decision made by the Minister for Immigration. The applicant, Mr Salopal, sought to challenge the lawfulness of the Minister's decision to refuse his visa application.

The central legal issue before the Court was whether the Minister's decision to refuse the visa application was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing Mr Salopal's eligibility for the visa.

Judge Riley reasoned that the delegate's assessment had indeed been flawed. The delegate had failed to adequately consider the evidence provided by Mr Salopal regarding his genuine and temporary intention to remain in Australia, instead placing undue weight on a single piece of information that was arguably taken out of context. The Court applied the principles of administrative law, emphasizing the obligation of decision-makers to undertake a proper consideration of all relevant material before them.

The Court found that the Minister's decision was vitiated by jurisdictional error and accordingly quashed the decision. The matter was remitted to the Minister for reconsideration according to law.

Orders