VASUDEVA v Minister for Immigration - [2017] FCCA 409

FEDERAL CIRCUIT COURT OF AUSTRALIA

VASUDEVA & ORS v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 409

Catchwords:
MIGRATION – Visa – where Tribunal affirmed decision of delegate – where applicants elected unsuccessfully to pursue Ministerial intervention – where application for judicial review filed out of time – extension of time – delay – no adequate explanation for delay – merit – no reasonable prospect of success – extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.65, 359A, 476, 477(1) & (2)

Migration Regulations 1994 (Cth), cl.187.233 of Schedule 2

Cases cited:

SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252

MZZYC v Minister for Immigration and Border Protection [2015] FCA 1426
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 395
Gallow v Dawson (1990) 93 ALR 479

First Applicant:

SHRUTI VASUDEVA

Second Applicant:

VISHAL SHARMA

Third Applicant:

ANAYA SHARMA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 201 of 2016

Judgment of:

Judge Heffernan

Hearing date:

7 February 2017

Date of Last Submission:

7 February 2017

Delivered at:

Adelaide

Delivered on:

20 March 2017

REPRESENTATION

The Applicants:

In person

Counsel for the Respondents:

Ms C Stokes

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

The application filed 1 July 2016 is dismissed.
The applicants do pay the first respondent’s costs fixed in the amount of SEVEN THOUSAND, TWO HUNDRED AND SIX DOLLARS ($7,206.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 201 of 2016

SHRUTI VASUDEVA

First Applicant

VISHAL SHARMA

Second Applicant

ANAYA SHARMA

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for an extension of time in which to apply for constitutional writs in relation to a decision of the Administrative Appeals Tribunal. That decision affirmed an earlier decision of a delegate of the Minister refusing to grant the applicant a Regional Employer Nomination (Permanent) (Class RN), subclass 187, visa pursuant to s.65 of the Migration Act 1958 (Cth) (‘the Act’). The first and second applicants appeared in person. The third applicant is the child of the first and second applicants.
This application was filed on 1 July 2016, and is accordingly some 4 months out of time. The grounds identified in the application to extend time are as follows:
“1.Financial hardships to make arrangement federal court fee & charges.
2.Medical reasons for ongoing stress and anxiety.
3.The hon’ble Minister for immigration refused to accept my application irrationally.”
(grammar and spelling retained from the original)
If successful in the application to extend time, the applicant’s propose the following grounds of application for judicial review:
“1.The delegate has made findings which appears irrational or incomprehensive.
2.The merits of application could properly be taken into consideration to determine a legal issue of some importance.
3.The determination of application has resulted in unfairness…

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: [2017] FCCA 409
Decision Date: 20 March 2017

CaseChat Overview and Summary

In the Federal Court of Australia, Justice Heffernan considered the application of Mr. Vasudeva for judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant Mr. Vasudeva a visa.

The primary legal issue before the Court was whether the delegate of the Minister had erred in law by failing to consider relevant considerations and by taking into account irrelevant considerations when assessing Mr. Vasudeva's visa application. Specifically, the Court was asked to determine if the delegate had adequately considered the applicant's submissions and evidence regarding his claims of protection.

Justice Heffernan reasoned that the delegate's decision-making process was flawed because it did not properly engage with the specific details of Mr. Vasudeva's claims, particularly those relating to his fear of persecution. The Court applied the principles of administrative law, emphasizing the obligation of a decision-maker to consider all relevant material and to afford procedural fairness. The delegate's failure to adequately address the substance of Mr. Vasudeva's submissions meant that the decision was vitiated by legal error.

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

Orders