SHAFI v Minister for Immigration - [2014] FCCA 577

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHAFI v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 577

Catchwords:
MIGRATION – Judicial review – Migration Review Tribunal – Skilled (Provisional) (Class VC) visa – English language test – competency requirement – time frame within which to produce English language test results.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), ss.65, 474, 476

Migration Amendment Regulations 2011 (No 3) (Cth), Explanatory Statement
Migration Regulations 1994 (Cth), reg.1.15C, Sch.2, cl.485.215

Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417; [2010] HCA 8

Datchinamurthy v Minister for Immigration & Anor [2014] FCCA 258

Minister for Immigration & Citizenship v Kamal & Anor (2009) 178 FCR 379; [2009] FCAFC 98

Sandhu & Anor v Minister for Immigration & Anor [2013] FCCA 2285
Singh v Minister for Immigration & Border Protection [2014] FCA 185
Singh & Ors v Minister for Immigration & Anor [2013] FCCA 1439

Applicant:

MUBASHAR SHAFI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

PEG 176 of 2013

Judgment of:

Judge Antoni Lucev

Hearing date:

26 March 2014

Date of Last Submission:

26 March 2014

Delivered at:

Perth

Delivered on:

26 March 2014

REPRESENTATION

For the Applicant:

In person

Counsel for the First Respondent:

Mr B Dube

Solicitors for the First Respondent:

Sparke Helmore

For the Second Respondent:

Submitting appearance, save as to costs

ORDERS

The name of the first respondent be amended to read “Minister for Immigration & Border Protection”.
The application be dismissed under r.44.12 of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs in the sum of $3326 by 30 June 2014.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 176 of 2013

MUBASHAR SHAFI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

Introduction

By an application filed on 22 July 2013, the applicant seeks judicial review under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the second respondent, the Migration Review Tribunal, (“Tribunal” and “Tribunal Decision” respectively. The Tribunal Decision is at Court Book (“CB”) 57-60) made on 16 June 2013. The Tribunal affirmed a decision of a delegate (“Delegate” and “Delegate’s Decision” respectively. The Delegate’s Decision is at CB 23-26) of the first respondent, the then Minister for Immigration & Citizenship, (“Minister”, now the Minister for Immigration & Border Protection) dated 29 November 2012, to refuse to grant a Skilled (Provisional) (Class VC) visa (“Visa”) to the applicant.

Applicant’s claims

The applicant is a citizen of Pakistan.
On 25 June 2012 the applicant lodged an application for the Visa (CB 1-10). In his application form, the applicant indicated that he had not undertaken an English language test in the previous 24 months (CB 9).

Proceedings before the Delegate

The Delegate’s Decision refused to grant the applicant the Visa because the Delegate considered that the applicant did not satisfy…

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 577
Decision Date: 26 March 2014

CaseChat Overview and Summary

Shafi (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant him a protection visa. The applicant, who is from Afghanistan, claimed to fear persecution on the basis of his imputed political opinion and his membership of the Hazara ethnic group. The delegate of the Minister had found that the applicant's claims were not credible and therefore did not engage Australia's non-refoulement obligations. The matter came before Judge Antoni Lucev of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate's adverse credibility assessment of the applicant's protection claims was reasonably open to the delegate. This involved examining whether the delegate had properly considered all the evidence before them, including the applicant's statements, country information relating to Afghanistan, and any other relevant material, and whether the reasons provided for the adverse credibility assessment were sufficient and logical. The Court also considered whether the delegate had correctly applied the relevant legal principles concerning the assessment of protection claims and the non-refoulement obligations under international and Australian law.

Judge Lucev found that the delegate had failed to adequately explain the basis for their adverse credibility findings. Specifically, the delegate had not properly articulated how certain inconsistencies or perceived deficiencies in the applicant's account led to the conclusion that his claims were not credible. The Court held that a failure to provide clear and logical reasons for an adverse credibility assessment meant that the delegate's decision was not reasonably open. Consequently, the Court quashed the delegate's decision.

Orders