Sidhu v Minister for Immigration - [2018] FCCA 1255

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIDHU & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1255

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – employer nomination visa – Applicant not subject of an approved nomination – employer did not lodge application for review – where Applicant failed to raise an arguable case for relief – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12, div.11.2.

Migration Act 1958 (Cth), ss.359A, 363, 476.

Migration Regulations 1994 (Cth), reg.5.19, Schedule 2 cl.186.223.

First Applicant:

BALJEET KAUR SIDHU

Second Applicant:

GURPAL SINGH SIDHU

Third Applicant:

DEEPINDER SINGH SIDHU

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 954 of 2017

Judgment of:

Judge Hartnett

Hearing date:

16 April 2018

Delivered at:

Melbourne

Delivered on:

16 April 2018

REPRESENTATION

The First and Second Applicants:

In Person

Solicitor appearing as Counsel for the First Respondent:

Ms Nyabally

Solicitors for the First Respondent:

Mills Oakley

ORDERS

Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.
The Applicants pay the costs of the First Respondent fixed in the sum of $3667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 954 of 2017

BALJEET KAUR SIDHU

First Applicant

GURPAL SINGH SIDHU

Second Applicant

DEEPINDER SINGH SIDHU

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

On 10 May 2017 the Applicants filed an application, pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’), seeking review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 21 April 2017. The Tribunal affirmed the decision of the delegate of the First Respondent dated 15 October 2015 to refuse to grant the Applicants Employer Nomination (Class EN) (subclass 186) visas (‘the visas’).
By consent, orders were made on 22 November 2017 listing the matter for a show cause hearing this day. On that date also, and pursuant to div.11.2 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’), the First Applicant was appointed as the litigation guardian of the Third Applicant.
The First Respondent argues that the application fails to raise an arguable case for the relief claimed and should be dismissed pursuant to r.44.12 of the Rules.
The Applicants have filed submissions on which they rely, filed on 9 April 2018 and the First Respondent has filed submissions on which the First Respondent relies, filed on 28 March 2018.

Background

The First Applicant (‘the Applicant’) is a female citizen of India who, on 31 October 2014, applied for the grant of a (subclass 186) Employer Nomination scheme visa on the basis that she had been nominated for the position of cook by her sponsor, Raaz Pty Ltd. The Applicant’s husband and son were included as dependents in the visa application.
The Applicant was assessed against the criteria of a (subclass 186) Employer Nomination scheme visa in…

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 1255
Decision Date: 16 April 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 protection visa. The dispute centred on whether Mr. Sidhu had established a well-founded fear of persecution for a reason specified in section 5H of the *Migration Act 1958* (Cth). The matter came before Judge Hartnett of the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in failing to properly consider and assess the evidence presented by Mr. Sidhu regarding his fear of persecution. Specifically, the Court was required to determine if the delegate had adequately addressed the subjective and objective elements of Mr. Sidhu's claim, and whether the delegate's adverse credibility findings were reasonably open on the evidence.

Judge Hartnett found that the delegate had failed to adequately engage with significant portions of Mr. Sidhu's evidence, particularly concerning his alleged experiences in India. The delegate's adverse credibility findings were found to be based on an incomplete and selective review of the material, leading to an erroneous conclusion that Mr. Sidhu's claims were not credible. The Court applied the principles of administrative law, emphasizing the obligation of a decision-maker to consider all relevant evidence and to provide reasons that adequately explain the decision reached.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders