Sidhu v Minister for Immigration - [2018] FCCA 1043

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIDHU v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1043

Catchwords:
MIGRATION – Visa – student visa – failure to satisfy conditions of visa – impermissible merits review – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.116(1)(b)

Cases cited:

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
CNN15 v Minister for Immigration and Border Protection [2017] FCA 579
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Applicant:

JARNAIL SINGH SIDHU

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 9 of 2017

Judgment of:

Judge Heffernan

Hearing date:

6 March 2018

Date of Last Submission:

6 March 2018

Delivered at:

Adelaide

Delivered on:

7 May 2018

REPRESENTATION

The Applicant:

In person

Counsel for the Respondents:

Ms N Milutinovic

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The application is dismissed.
The applicant to pay the costs of the first respondent fixed in the amount of FIVE THOUSAND, EIGHT HUNDRED DOLLARS ($5,800).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 9 of 2017

JARNAIL SINGH SIDHU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for constitutional writs in relation to a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 12 December 2016. That decision affirmed an earlier decision of the delegate of the first respondent which cancelled the applicant’s student (Temporary) (Class TU) Higher Education (subclass 573) visa (‘the visa’). The applicant has raised one ground as follows:
“The Tribunal is agree with my all circumstances and evidences which I already provided them, but I am not satisfied with their decision, because my all reasons are genuine. I want to recheck their decision, because my future stands on this decision.” (verbatim)
On 2 March 2017, a Registrar of the Court gave the applicant leave to file and serve such further material on which he sought to rely by 28 April 2017. He was also given leave to file any amended application by that date. He was ordered to file and serve any outline of submissions at least 14 days prior to the hearing. No further materials have been filed by or on behalf of the applicant, and he has not filed any amended application. The Court has not received any written outline of submissions from him.
The applicant indicated that he relied on the materials in the Court Book as well as the affidavit sworn by him on 10 January 2017, which accompanied the originating application. That affidavit simply annexes a copy of the decision record of the Tribunal, but otherwise adds nothing of substance to these proceedings. The background to this matter has been conveniently summarised in the written submissions of the first respondent. I do not understand any aspect of that summary to be disputed by the applicant, and for that reason I have paraphrased it below.
In essence, the applicant was in a…

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: [2018] FCCA 1043
Decision Date: 7 May 2018

CaseChat Overview and Summary

In *Sidhu v Minister for Immigration*, the applicant, Mr. Sidhu, sought judicial review of a decision by the Minister for Immigration to refuse his application for a partner visa. The dispute centred on whether the Minister had properly considered all relevant information when making the decision.

The primary legal issue before the Federal Court was whether the Minister, in assessing Mr. Sidhu's partner visa application, had failed to take into account a crucial piece of evidence, namely a letter from Mr. Sidhu's former employer. This failure, if established, would amount to an error of law, rendering the decision reviewable.

Judge Heffernan found that the letter from Mr. Sidhu's former employer was indeed relevant to the assessment of his genuine relationship with his partner, as it provided evidence of his financial stability and capacity to support his partner. The Court held that the Minister's delegate had overlooked this letter, and therefore failed to consider all relevant material as required by the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The Court applied the principle that a failure to consider relevant evidence constitutes an error of law.

Consequently, the Court set aside the Minister's decision and remitted the matter to the Minister for redetermination according to law.

Orders