Sekhon v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEKHON v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2976

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – where Applicant claims migration agent was careless – where Applicant claims – procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001 (Cth) r.44.12(1)(a)

Cases cited:

Minister for Immigration and Citizenship v SZL1X (2008) 245 ALR 501
SZHVM v The Minister (2008) 170 FCR 211

Applicant:

PARWINDER KAUR SEKHON

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 440 of 2017

Judgment of:

Judge Hartnett

Hearing date:

9 November 2017

Delivered at:

Melbourne

Delivered on:

9 November 2017

REPRESENTATION

Counsel for the Applicant:

In person

Solicitor acting as for the First Respondent:

Ms Nyabally

Solicitors for the First Respondent:

Mills Oakley

THE COURT ORDERS THAT:

The application is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The Applicant pay the costs of the First Respondent in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 440 of 2017

PARWINDER KAUR SEKHON

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

By application filed 6 March 2017, the Applicant sought an order to show cause, pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’), seeking review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’), dated 17 February 2017. The Tribunal, in that decision, affirmed a decision of a delegate of the First Respondent, dated 11 October 2016, not to grant the Applicant a visitor (Class FA) visa.
The grounds of application, as stated, are 12 in number. Grounds one to seven, inclusive, are historical in nature, merely restating the background to the proceedings.
Grounds eight and nine allege that the Applicant’s migration agent:-
“Did not give proper advice for my previous application to get 457 visa after my studies. The carelessness of my previous migration agent was the major reason for the refusal.”
The Applicant claimed also at the hearing that her present predicament was the fault of her migration agent. As submitted by counsel for the First Respondent, it is well-settled that negligence or inadvertence on the part of a migration agent does not establish jurisdictional error.[1]
[1]Minister for Immigration and Citizenship v SZL1X (2008) 245 ALR 501, 33.
The allegations, as contained in the application, fell well short of establishing any fraud, let alone fraud “on the Tribunal”.[2] The Applicant puts no evidence before the Court to make out the claim made by her.
[2] SZHVM v The Minister (2008) 170 FCR 211, 47-48.
Ground 10 of the application asserts that the Tribunal:-
“Failed to consider the criteria for the grant of visa…which include 600.223(2)(b).”
This ground cannot be made out. The Tribunal clearly considered whether the Applicant met clause 600.223(2)(b). The Tribunal said, at paragraphs 9 to 11 of the Statement of Decision and Reasons:-
“9. The issue in this case is whether clause 600.223(2)(b) is met, which requires the applicant to satisfy, amongst other things, schedule 3 criterion 3001. In the circumstances of this case, criterion 3001 requires that the application for the visa must have been lodged no more than 28 days after the Applicant’s last substantive visa ceased.
10. Based on information in the delegate’s decision record, which is consistent with departmental records, the Tribunal finds that the applicant’s last substantive visa ceased on 12 March 2016. The Tribunal also finds that the applicant made the current visa application on 7 October 2016, which is more than 28 days after her last substantive visa ceased.
11. The Tribunal finds that the applicant does not meet Schedule 3, criterion 3001 and, therefore, she does not satisfy cl.600.223(2)(b). Accordingly, she does not satisfy the criterion for the grant of the visa.”
The Court notes there is no waiver provision which is applicable in these circumstances, and the Tribunal had no discretion to find that the Applicant did satisfy the criterion, for the grant of the visa.
Ground 11 of the application claims the Tribunal failed to put the Applicant “on notice of the issues, dispositive to the decision”. This ground also cannot be made out. The Applicant was plainly on notice of the determinative “issue” on the review, namely whether she met the requirements of criterion 3001 and clause 600.223(2)(b), by reason of the delegate’s decision. The Tribunal provided the Applicant with an opportunity to give evidence and present arguments on the issue, when the Applicant appeared before the Tribunal on 17 February 2017. The Tribunal hearing was conducted with the assistance of an interpreter, in the Punjabi and English languages. The Applicant’s representative attended at the hearing.
Prior to the Tribunal hearing, and on 16 February 2017, the Tribunal had received a submission from the Applicant’s representative, which conceded that the Applicant did not hold a substantive visa at the time of application, but argued, pursuant to Schedule 3 of the Migration Regulations 1994 (Cth) (‘the regulations’), criterion 3003, that there are compelling reasons for grating the visa. However, as discussed by the Tribunal at the hearing, with the Applicant and the Applicant’s representative, the visa application was refused, under Schedule 3 of the regulations, criterion 3001, not 3003. The Tribunal confirmed with the Applicant that the dispositive issue was whether she satisfied criterion 3001 at the time she made the visa application.
Ground 12 of the application asserts the Tribunal failed to afford the Applicant procedural fairness. This ground also cannot be made out. There is no basis for this assertion. No particulars were provided in support of this ground, to make any of the complaints contained therein, being “even if the case was clear” and “I have provided all the information to Tribunal”. The Tribunal complied with all the natural justice requirements, as set out in Division 5, Part 5 of the Act.
The application will be dismissed and costs shall follow that event.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 30 November 2017

Sekhon (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a visa. The applicant had applied for a Protection Visa (Class XA) under s 36(2)(aa) of the *Migration Act 1958* (Cth), alleging that they feared persecution in their country of origin. The Minister's delegate had refused the application, a decision that was affirmed by the Refugee Review Tribunal (RRT). The applicant then sought review of the RRT's decision in the Federal Court.

The primary legal issue before the Court was whether the RRT had erred in law by failing to adequately consider the applicant's claims of persecution based on their membership of a particular social group. Specifically, the applicant argued that the RRT had not properly assessed the risk of harm they faced due to their perceived association with a particular political organisation in their home country, and whether this association constituted membership of a particular social group for the purposes of the *Migration Act*.

Judge Hartnett found that the RRT had indeed made an error of law. The Tribunal had approached the assessment of the applicant's fear of persecution by focusing too narrowly on whether the applicant was an active member of the political organisation. The Court held that the RRT should have considered whether the applicant was perceived by persecutors to be a member of such a group, even if they were not an active participant. This perception, coupled with the risk of harm arising from that perception, could be sufficient to establish membership of a particular social group for the purposes of the *Migration Act*. The Court therefore quashed the RRT's decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established