Sehgal v Minister for Immigration - [2018] FCCA 2587

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEHGAL v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2587

Catchwords:
MIGRATION – Application for judicial review – skilled visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.417

Migration Regulations 1994, reg.485.213

Cases cited:

Anand v Minister for Immigration & Citizenship [2013] FCA 1050

Mir v Minister for Immigration and Border Protection [2018] FCA 697

Rahim v Minister for Immigration & Anor [2018] FCCA 1814

Applicant:

RAHUL SEHGAL

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 870 of 2017

Judgment of:

Judge Riethmuller

Hearing date:

21 August 2018

Date of Last Submission:

21 August 2018

Delivered at:

Melbourne

Delivered on:

21 August 2018

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent:

Mr Yuile

Solicitors for the First Respondent:

DLA Piper Australia

ORDERS

The application filed 1 May 2017 be dismissed.
There be no orders as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 870 of 2017

RAHUL SEHGAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 15 May 2017. The Tribunal dismissed an application for review of a decision of a delegate refusing to grant the applicant a Skilled Provisional (Class VC) Subclass 485 visa.
The applicant is a citizen of India. The applicant has been in Australia lawfully and in accordance with his visa conditions for some time. The applicant became eligible to apply for this category of visa and did so on 24 August 2016.
There is no suggestion that the applicant has been anything other than appropriate in his behaviour, nor that he is anything other than genuine in his desire for the visa and in his capacity to meet the substantive visa conditions. The application, as completed by the applicant, was an online form. On the first page of the form (which appears at court book p.1), the form asks whether or not he is a person who has obtained, in the last 12 months, an Australian Federal Police Check to determine if he has any criminal records. The applicant answered ‘no’, that he hadn’t obtained the police check as yet.
Unfortunately for the applicant, reg.485.213 of the Migration Regulations 1994, relevantly provides a condition that:
When the application was made, it was accompanied by evidence that:
(a) the applicant; and
(b) each person included in the application who is at least 16;
had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.
The applicant, having received the delegate’s decision, which is at court book p.18, effectively identifying for him that the police check had to either have been obtained or sought prior to lodging the visa application, then obtained the check. The police check shows that he has…

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: [2018] FCCA 2587
Decision Date: 21 August 2018

CaseChat Overview and Summary

In *Sehgal v Minister for Immigration*, the applicant sought judicial review of a decision made by the Minister for Immigration concerning a skilled visa application. The applicant challenged the lawfulness of the Minister's decision.

The primary legal issue before the Federal Circuit Court was whether the Minister's decision to refuse the skilled visa application was affected by an error of law. This involved an examination of the evidence before the Minister and whether the decision-making process was fair and in accordance with relevant migration legislation and policy.

Judge Riethmuller found that there were no matters of principle raised by the applicant's submissions that would warrant intervention. The court concluded that the Minister's decision was not vitiated by any error of law. Consequently, the application for judicial review was dismissed.

Orders