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Thakur & Ors v Minister

Thakur & Ors v Minister

Case [2020] FCCA 1038 8 May 2020

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FEDERAL CIRCUIT COURT OF AUSTRALIA

THAKUR & ORS v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1038

Catchwords:
MIGRATION – Regional Employer Nomination (subclass 187) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal considered the compassionate and compelling circumstances advanced by the applicants – jurisdictional error established – writs issued.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), cl.187.213 of sch.2, PIC 4020 of sch.4

Cases cited:

Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163

Kaur v Minister for Immigration & Border Protection [2017] FCAFC 184

Minister for Immigration & Border Protection v Maioha [2018] FCAFC 216
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

First Applicant:

VIKRAM SINGH THAKUR

Second Applicant:

NEETU SHAHI

Third Applicant:

AVNI THAKUR

Fourth Applicant:

AARAV SINGH THAKUR

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 315 of 2019

Judgment of:

Judge Kendall

Hearing date:

24 April 2020

Date of Last Submission:

24 April 2020

Delivered at:

Perth

Delivered on:

8 May 2020

REPRESENTATION

Applicants:

The first applicant appeared in person and on behalf of the other applicants

Counsel for the First Respondent:

Mr A Gerrard

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

A writ of certiorari issue directed to the second respondent quashing the decision dated 23 July 2019.
A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicants’ application for review according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 315 of 2019

VIKRAM SINGH THAKUR

First Applicant

NEETU SHAHI

Second Applicant

AVNI THAKUR

Third Applicant

AARAV THAKUR

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicants in this matter are citizens of India. The first applicant and the second applicant are husband and wife respectively. The third applicant is their daughter and the fourth applicant is their son.
On 27 November 2015, the first applicant applied for a Regional Employer Nomination (subclass 187) visa (the “visa”) (Court Book (“CB”) 1-24). The first applicant was the primary applicant and the other applicants were identified as members of the family unit. The applicants were assisted by a migration agent.
In the visa application, the first applicant indicated that his nominated occupation was as a “cook”. He further indicated that he had undertaken an English Language test on 18 October 2014 and was deemed “competent”…

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.

Continue reading Thakur & Ors v Minister

Details

AGLC: Thakur & Ors v Minister [2020] FCCA 1038
Case: [2020] FCCA 1038
Decision Date: 8 May 2020

CaseChat Overview and Summary

In *Thakur & Ors v Minister*, the applicants sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) concerning their application for a Regional Employer Nomination (subclass 187) visa. The core of the dispute revolved around whether the AAT had adequately considered the compassionate and compelling circumstances presented by the applicants in support of their visa application.

The primary legal issue before the Federal Court was whether the AAT had committed a jurisdictional error by failing to properly consider the compassionate and compelling circumstances advanced by the applicants. This required the Court to determine the scope of the AAT's obligations in assessing such circumstances within the framework of the migration legislation.

Justice Kendall found that the AAT had indeed made a jurisdictional error. The Court reasoned that the Tribunal's decision demonstrated a failure to engage with the substance of the applicants' submissions regarding their compassionate and compelling circumstances. This failure meant that the AAT had not undertaken the necessary assessment required by law, thereby vitiating its decision. Consequently, the Court issued the writs sought by the applicants.

Orders