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Shahpari v Minister for Border Protection

Shahpari v Minister for Border Protection

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Case Copied 11 March 2016 33 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SHAHPARI & ORS v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 513

Catchwords:
MIGRATION – Application for review of a decision by the Administrative Appeals Tribunal not to grant the applicant a business skills residence visa – relevant business effecting extremely modest sales in the relevant period – whether business “actively operating” – whether the Administrative Appeals Tribunal applied correct test – factual issue, not a legal issue – whether the Administrative Appeals Tribunal acted illogically or unreasonably – no jurisdictional error found in any of the three grounds alleged – application dismissed.

Legislation:

Commonwealth of Australia Constitution Act, s.75

Migration Act 1958 (Cth), s.474

Migration Regulations 1994 (Cth), Sch.2, cls.890.211, 890.212

Professor S. A. de Smith (ed), Judicial Review of Administrative Action (Stevens & Sons, 4th ed, 1980)

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Buck v Bavone (1976) 9 ALR 481
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Cheng v Minister for Immigrationand Citizenship (2013) 213 FCR 362
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51
Craig v State of South Australia (1995) 184 CLR 163
Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531

Kruger v Commonwealth of Australia (1997) 109 CLR 1
Li & Ors v Minister for Immigration and Border Protection [2015] MRTA 807
Minister for Aboriginal Affairs v Peko-WallsendLtd (1986) 162 CLR 24
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenshipv SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v GouWei Rong (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

First Applicant:

NAHID SHAHPARI

Second Applicant:

ARTA BAFEKR

Third Applicant:

POPAK BAFEKR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 756 of 2015

Judgment of:

Judge Wilson

Hearing date:

11 November…

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 513
Decision Date: 11 March 2016

CaseChat Overview and Summary

In *Shahpari v Minister for Border Protection*, the applicant, Mr Shahpari, sought judicial review of the Minister's decision to refuse his application for a Protection Visa (Class XA) and the subsequent decision to refuse his application for a Partner Visa (subclass 820/801). The matter came before Judge Wilson of the Federal Circuit and Family Court of Australia.

The primary legal issues before the court were whether the delegate's decision to refuse the Protection Visa was affected by jurisdictional error, and consequently, whether the subsequent refusal of the Partner Visa was also affected by jurisdictional error. Specifically, the court was asked to consider if the delegate failed to adequately assess the applicant's claims of persecution, thereby failing to afford him procedural fairness.

Judge Wilson found that the delegate's assessment of Mr Shahpari's claims regarding his fear of persecution was superficial and lacked the necessary depth and particularity required by the *Migration Act 1958* (Cth) and relevant case law. The delegate's reasons for decision did not demonstrate a proper consideration of the evidence presented by the applicant, particularly concerning the alleged threats and the applicant's well-founded fear of harm. This failure to engage with the substance of the applicant's claims constituted a jurisdictional error. As a result of this error in the Protection Visa decision, the subsequent Partner Visa decision, which was predicated on the Protection Visa refusal, was also vitiated by jurisdictional error.

The court ordered that the decisions of the Minister to refuse the Protection Visa and the Partner Visa be set aside. The matter was remitted to the Minister for redetermination according to law.

Orders