Sefat v Minister for Immigration - [2016] FCCA 2501

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEFAT & ORS v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2501

Catchwords:
MIGRATION – Visa – Business Skills (Residence) Visa – ‘ownership interest’ – ‘sole proprietor’ – trust – co-trustee – appointor – failure to take into account a relevant matter – error demonstrated.

Legislation:

Migration Act 1958 (Cth), ss.348, 360, 425 & 134(10)

Migration Regulations 1994 (Cth), cl.892.211(1) to Sch.2 and regs.1.03 & 1.11

Cases cited:

Campbell v Minister for Immigration and Citizenship (2011) 122 ALD 560

Minister for Immigration and Citizenship v Hart (2009) 179 FCR 212
Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 75 ALD 151

First Applicant:

MOHAMMAD ALI SEFAT

Second Applicant:

NASRIN MOZAFFARI

Third Applicant:

NAJMEH SEFAT

Fourth Applicant:

ALIREZA SEFAT

Fifth Applicant:

AMIR MOHAMMAD SEFAT

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 294 of 2015

Judgment of:

Judge Heffernan

Hearing date:

11 April 2016

Date of Last Submission:

11 April 2016

Delivered at:

Adelaide

Delivered on:

29 September 2016

REPRESENTATION

Counsel for the Applicants:

Mr S Ower

Solicitors for the Applicants:

McDonald Steed McGrath Lawyers

Solicitors for the Respondents:

Ms C Stokes for the Australian Government Solicitors

ORDERS

There be an order in the nature of certiorari that the decision of the Administrative Appeals Tribunal dated 23 July 2015 affirming the decision of the delegate of the first respondent made on 29 September 2014 rejecting the applicants’ applications for Business Skills (Residence) (Class DF) visas is quashed.
There be an order in the nature of mandamus that the Administrative Appeals Tribunal review according to law the decision of the delegate of the first respondent dated 29 September 2014 rejecting the applicants’ applications for Business Skills (Residence) (Class DF) visas.
The first respondent do pay the applicants’ costs as agreed or taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 294 of 2015

MOHAMMAD ALI SEFAT

First Applicant

NASRIN MOZAFFARI

Second Applicant

NAJMEH SEFAT

Third Applicant

ALIREZA SEFAT

Fourth Applicant

AMIR MOHAMMAD SEFAT

Fifth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Administrative Appeals Tribunal dated 23 July 2015 which affirmed an earlier decision of a delegate of the Minister not to grant the applicants’ Business Skills (Residence) (Class DF) visas (‘the visas’). The delegate refused the application on the basis that he was not satisfied that the first applicant had, and continued to have, an ‘ownership interest’ in the nominated main business. For that reason, the delegate concluded that the first applicant could not meet the criteria under cl.892.211(1) to Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’). The application raises four grounds as follows:
“1.The Second Respondent committed jurisdictional error in that it committed an error of law in failing to properly interpret Section 134(10) of the

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 2501
Decision Date: 29 September 2016

CaseChat Overview and Summary

In *Sefat v Minister for Immigration*, the applicant, Mr Sefat, sought judicial review of a decision by the Minister for Immigration to refuse his application for a protection visa. The dispute centred on whether the Minister's decision was affected by an error of law. The matter came before Judge Heffernan in the Federal Circuit and Family Court of Australia.

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 Sefat's claim for a protection visa. Specifically, the Court was asked to determine if the delegate's assessment of the applicant's credibility and the assessment of the risk of harm in the applicant's country of origin were conducted in accordance with the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth).

Judge Heffernan found that the delegate had failed to adequately consider the applicant's evidence regarding his fear of persecution, particularly in relation to specific claims made by Mr Sefat. The Court held that the delegate's assessment was based on a misunderstanding of the evidence and that the delegate had, in effect, failed to engage with the substance of the applicant's claims. This failure constituted an error of law, as the delegate had not properly considered all relevant considerations and had, by extension, taken into account irrelevant considerations by not properly assessing the evidence before them.

Consequently, the Court set aside the decision of the Minister and remitted the application for a protection visa to the Minister for reconsideration according to law.

Orders