Sekhon v Minister for Immigration - [2014] FCCA 2834

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEKHON v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2834

Catchwords:
MIGRATION – Skilled visa – refusal – review of Migration Review Tribunal (“Tribunal”) decision – when a document will be a “bogus document”.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that its conclusion that the applicant failed to satisfy Public Interest Criterion 4020 was unsupported by evidence, by reason that it failed to consider the applicant’s claims and by reason that ostensibly it was biased.

Legislation:
Migration Act 1958, ss.97, 359A, 474

Migration Regulations 1994, regs.1.03, 2.26B, cls.485.214, 485.22, 485.221, 485.224 of sch.2, cl.4020 of sch.4
Migration Legislation Amendment Regulation 2013 (No.1), item 9 of sch.2, item 1 of sch.6
Migration Amendment Regulations 2011 (No.1), reg.5, item 4 of sch.3
Instrument number IMMI 11/068 “Specification of Skilled Occupations, Relevant Assessing Authorities, Countries and Points for General Skilled Migration Visas and Certain Other Visas”, legislative instrument FL2011L02011

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Singh v Minister for Immigration & Citizenship [2012] FMCA 145
Batra v Minister for Immigration & Citizenship (2013) 212 FCR 84
Rafi v Minister for Immigration & Citizenship [2012] FMCA 1002
Young, Re Macryannis (2011) 124 ALD 28
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1
SZRBA v Minister for Immigration & Border Protection [2014] FCAFC 81
Minister for Immigration & Citizenship v SZQHH (2012) 200 FCR 223
Johnson v Johnson (2000) 201 CLR 488
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
Minister for Immigration & Citizenship v MZYHS (2011) 119 ALD 534

Applicant:

SATBIR SINGH SEKHON

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2453 of 2012

Judgment of:

Judge Cameron

Hearing date:

29 August 2013

Date of Last Submission:

20 September 2013

Delivered at:

Sydney and by videolink to Brisbane

Delivered on:

9 December 2014

REPRESENTATION

Counsel for the Applicant:

Mr M. Steele

Solicitors for the Applicant:

Milner

Counsel for the First Respondent:

Mr T. Reilly

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2453 of 2012

SATBIR SINGH SEKHON

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, who is a citizen of India, applied for a Skilled (Provisional) (Class VC) subclass 485 visa on 4 December 2009. On 9 March 2012 that application was refused by a delegate of the first respondent (“Minister”) on the basis that the applicant did not satisfy the requirements of cl.485.224(a) of sch.2 to the Migration Regulations 1994 (“Regulations”) because he did not meet Public Interest Criterion 4020 (“PIC 4020”) found in sch.4 to the Regulations. The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of…

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: [2014] FCCA 2834
Decision Date: 9 December 2014

CaseChat Overview and Summary

Sekhon applied for a skilled visa, which was refused by the Minister for Immigration. The applicant sought judicial review of the Migration Review Tribunal's decision affirming the refusal. The central dispute concerned whether the applicant had provided a "bogus document" in support of their visa application, leading to the refusal.

The court was required to determine whether the Tribunal's conclusion that the applicant failed to satisfy Public Interest Criterion 4020 was affected by jurisdictional error. This involved assessing whether the Tribunal's finding that the document was "bogus" was unsupported by evidence, whether the Tribunal failed to consider the applicant's claims, and whether the Tribunal's decision was vitiated by apparent bias.

Judge Cameron reasoned that for a document to be considered "bogus" under the relevant provisions, it must be found to be not genuine or not in existence. The Tribunal's finding that the document was bogus was based on its assessment of the evidence before it, including the applicant's explanations and the nature of the document itself. The court found no jurisdictional error in the Tribunal's approach to this issue, nor in its consideration of the applicant's claims. Furthermore, the court found no evidence to support the allegation of bias. The application for judicial review was dismissed.

Orders