Thapaliya v Minister for Immigration - [2018] FCCA 3278

FEDERAL CIRCUIT COURT OF AUSTRALIA

THAPALIYA v MINISTER FOR IMMIGRATION

[2018] FCCA 3278

Catchwords:
MIGRATION – Application for review – where it was asserted that the applicant’s wife failed to notify delegate of change of circumstances – where applicant’s visa was automatically cancelled – decision not amenable for review.

Legislation:

Migration Act (1958) (Cth), ss.104, 128, 131(1), 140, 476

Migration Regulations1994 (Cth), sch.2 cl.186.311, reg.5.19(3)(d)(i)s

Cases cited:

Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181

Rani v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 379

Applicant:

BISHNU THAPALIYA

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER ROTECTION

File Number:

BRG 1186 of 2016

Judgment of:

Judge Egan

Hearing date:

7 November 2018

Date of Last Submission:

7 November 2018

Delivered at:

Brisbane

Delivered on:

7 November 2018

REPRESENTATION

Counsel for the Applicant:

Mr L Burrow

Solicitors for the Applicant:

Chand Lawyers

Counsel for the Respondents:

Mr B McGlade

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The Application for review filed on 21 December 2016 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISANE

BRG 1186 of 2016

BISHNU THAPALIYA

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REASONS FOR JUDGMENT

This is an application brought by a male person named Bishnu Prasad Thapaliya, who was the former husband of one Samitra Sapkota. They were married on 27 April 2008. On 22 July 2014, the said Ms Sapkota applied for an employer nomination (Class EN – subclass 186) visa. Such visa was sought on the basis that Ms Sapkota would work as a cook for a period of at least two years, as is a requirement pursuant to Regulation 5.19(3)(d)(i) of the Migration Regulations1994 (Cth) (“the Regulations”).[1] The applicant applied for the same visa on the basis that he was a member of the same family unit as Ms Sapkota. He did that pursuant to the clause 186.311 criterion to schedule 2 of the Regulations, which relevantly provided:
[1] See Court Book (“CB”) p. 49.
The applicant:
(a) is a member of the family unit of a person (the primary applicant) who holds a subclass 186 visa granted on the basis of satisfying the primary criterion for the grant of the visa; and
(b) made a combined application with the primary applicant.
Information subsequently came to the attention of the Department to the effect that the nominated employer of Ms Sapkota was placed into liquidation on 5 September 2014 (19 days prior to the grant of the visas), and that the employer had ceased operating from that date of liquidation. In those circumstances, the information relevantly constituted a change to Ms Sapkota’s circumstances, requiring her to inform the Minister as soon as practicable of such change pursuant to the provisions of section 104 of the MigrationAct 1958 (Cth) (“the Act”). That section provided that a failure to comply with the provisions of it constituted a ground for the cancellation…

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 3278
Decision Date: 7 November 2018

CaseChat Overview and Summary

In *Thapaliya v Minister for Immigration*, the applicant, Mr Thapaliya, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant Mr Thapaliya a visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in law when assessing Mr Thapaliya's application for a visa. Specifically, the Court was required to determine if the delegate had failed to consider relevant information or had taken into account irrelevant considerations when making the decision to refuse the visa.

Judge Egan found that the delegate had failed to properly consider crucial evidence provided by the applicant, which was relevant to the assessment of the visa criteria. The Court applied the principles of administrative law, emphasizing the duty of a decision-maker to undertake a comprehensive and fair consideration of all material before them. The delegate's failure to engage with this evidence meant that the decision was vitiated by an error of law.

Consequently, the Court quashed the decision of the Minister and remitted the matter to the Minister for redetermination according to law.

Orders