Umar v Minister for Immigration - [2015] FCCA 1665

FEDERAL CIRCUIT COURT OF AUSTRALIA

UMAR v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1665

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal – applicant failing to provide Tribunal with proof of completion of Year 12 schooling – applicant asserting Tribunal told him it would obtain his previous visa applications (which included Year 12 certificate) – transcript of hearing obtained – clear Tribunal did not make assertions attributed to it by applicant – whether applicant misled by what Tribunal said – Tribunal not misleading applicant – no jurisdictional error shown.

Legislation:
Migration Act 1958, ss.54, 55, 352(4)

Shrestha v Minister for Immigration and Border Protection [2014] FCCA 2709
WAGP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 103
SZOPF v Minister for Immigration and Citizenship [2010] FMCA 924
Muin v Refugee Review Tribunal (2002) 190 ALR 601

Applicant:

RANA MUHAMMAD UMAR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 315 of 2014

Judgment of:

Judge Burchardt

Hearing date:

22 April 2015

Date of Last Submission:

18 May 2015

Delivered at:

Melbourne

Delivered on:

26 June 2015

REPRESENTATION

The Applicant:

In person

Counsel for the First Respondent:

Mr Hutton

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 315 of 2014

RANA MUHAMMAD UMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By an application filed 24 February 2014, the applicant seeks judicial review of a decision of the Migration Review Tribunal (“Tribunal”) dated 3 February 2014. The Tribunal affirmed a decision of the delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) visa. The grounds of application set out in the initiating application are as follows:
“1. The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction;
Particulars
a. A copy of his secondary schooling results, that is Year 12 certificate was provided when the applicant made his application for a student visa and therefore the tribunal is wrong when it concludes that the applicant has not given evidence in accordance with 5A406 being the other requirements in Schedule 5 for subclass 572 at assessment level 4 and that he does not satisfy the requirements of cl.572.223(2)(a).”
The affidavit in support of the application relevantly merely repeats the particulars just set out and annexes a copy of the Tribunal’s decision.
Although the applicant was given the opportunity by orders made by Registrar Caporale on 21 May 2014 to file any further materials or written submissions, he did not do so and the only written submissions filed are those of the first respondent on 7 April 2015.
The Court Book (“CB”) shows that the application for a Student (Temporary) Visa dated 28 August 2012 included at CB 3 a notification that the applicant…

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 1665
Decision Date: 26 June 2015

CaseChat Overview and Summary

Umar (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse his application for a Protection visa. The applicant alleged that the delegate's decision was affected by jurisdictional error.

The primary legal issue before the Court was whether the delegate's assessment of the applicant's claims for protection, particularly concerning the risk of persecution based on his imputed political opinion, was affected by jurisdictional error. This involved determining whether the delegate failed to consider relevant evidence or took into account irrelevant considerations in reaching their decision.

Judge Burchardt found that the delegate had failed to adequately consider the applicant's evidence regarding his imputed political opinion and the potential consequences of that imputed opinion in his country of origin. The delegate's reasoning was found to be superficial and did not engage with the substance of the applicant's claims, thereby constituting a failure to exercise the jurisdiction conferred upon them. The Court quashed the delegate's decision.

Orders