Sheth v Minister for Immigration - [2015] FCCA 3172

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHETH v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3172

Catchwords:
MIGRATION – Application for review of decision of Administrative Appeals Tribunal – application to Tribunal made out of time – whether applicant properly notified of delegate’s decision – no legal error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.66, 347, 362B, 476, 494B, 494C, 497C, Part 5

Migration Regulations 1994 (Cth), regs.2.16, 4.10

Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172
Singh v Minister for Immigration & Citizenship [2011] FCAFC 27
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280
Chowdhury & Ors v Minister for Immigration & Anor [2015] FCCA 2981

Applicant:

ATITBHAI KAMLESHKUMAR SHETH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 683 of 2014

Judgment of:

Judge Nicholls

Hearing date:

7 August 2015

Date of Last Submission:

7 August 2015

Delivered at:

Sydney

Delivered on:

1 December 2015

REPRESENTATION

Solicitors for the Applicant:

Mr C Guan of Paul Guan & Associates

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

DLA Piper

ORDERS

The application made on 18 March 2014 and ultimately amended on 15 July 2015 is dismissed.
The applicant pay the first respondent's costs set in the amount of $7500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 683 of 2014

ATITBHAI KAMLESHKUMAR SHETH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 18 March 2014 and ultimately amended on 15 July 2015 seeking review of the decision of the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 4 March 2014 which found that it did not have jurisdiction to review the decision of the Minister’s delegate to refuse a Student (Temporary) (Class TU) visa (“the visa”) to the applicant.

Background

In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”), the affidavit of Adele Juliet Carr, solicitor, made on 4 November 2014, read by the Minister with no objection, and the affidavit of Gregory Albert Miiller, Internet Gateway Engineer, made on 6 August 2015 read by the Minister, with no objection.
The applicant is a citizen of India who arrived in Australia as a student. He applied for the visa relevant to the current matter on 25 March 2013 (CB 1 to CB 30).
The Minister’s delegate refused the application for the visa on 6 June 2013 (CB 40 to CB 57). The delegate found that the applicant did not meet the “primary criteria” for any of the relevant subclasses for the grant of the visa. In particular, that…

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: [2015] FCCA 3172
Decision Date: 1 December 2015

CaseChat Overview and Summary

In *Sheth v Minister for Immigration*, the applicant, Mr. Sheth, sought judicial review of a decision by the Minister for Immigration to refuse his application for a protection visa. The dispute centred on whether the Minister had adequately considered the applicant's claims of persecution. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the Minister's delegate had failed to properly consider the applicant's claims regarding his fear of persecution, specifically in relation to the risk of refoulement. This involved an assessment of whether the delegate had taken into account all relevant information and whether the delegate's reasoning was illogical or irrational.

Judge Nicholls found that the delegate's assessment of the applicant's claims was flawed. The delegate had failed to adequately engage with the evidence presented by the applicant concerning the specific risks he faced upon return to his country of origin. The Court applied the principles of administrative law, including the requirement for decision-makers to undertake a comprehensive and logical assessment of all relevant evidence, and to provide reasons that are not illogical or irrational. The delegate's failure to properly consider the evidence of past persecution and the likelihood of future persecution led to the conclusion that the decision was vitiated by jurisdictional error.

The Court ordered that the decision of the Minister's delegate be set aside and remitted to the Minister for reconsideration according to law.

Orders