Vata v Minister for Immigration - [2015] FCCA 1735

FEDERAL CIRCUIT COURT OF AUSTRALIA

VATA v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1735

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – cancellation of Class BW (Employer Nomination Scheme) Subclass 856 visa – non-compliance with s.101 of Migration Act 1958 (Cth) – Applicant’s use of aliases – failure to comply with reg.2.41(c) of the Migration Regulations 1994 (Cth) considered – s.360 of the Migration Act 1958 (Cth) – denial of procedural fairness – jurisdictional error – application allowed – declaration made – writs issued – remitted to the Migration Review Tribunal.

Legislation:

Limitation Act 2005 (WA), s.41

Migration Act 1958 (Cth), ss.101, 109, 109(1), 109(1)(a), 109(1)(b), 109(1)(c), 360, 425

Migration Regulations 1994 (Cth), regs.2.41, 2.41(c), sch.2: cls.457.223(7)(a)(i), 856.223, 856.223(1), 856.227

Barr v Farrell [2013] WASCA 211
Huang v Minister for Immigration and Multicultural Affairs [2000] FCA 1696

Lee v Minister for Immigration and Citizenship[2007] FCAFC 62
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21
Nassif v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 481
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs(2006) 231 ALR 592

Applicant:

JANI VATA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 876 of 2014

Judgment of:

Judge Hartnett

Hearing date:

25 March 2015

Delivered at:

Melbourne

Delivered on:

26 June 2015

REPRESENTATION

Counsel for the Applicant:

Mr Knowles

Solicitors for the Applicant:

Visa Law Pty Ltd

Counsel for the First Respondent:

Mr Brown

Solicitors for the First Respondent:

Australian Government Solicitor

DECLARATION

The decision of the Second Respondent dated 7 April 2014 was not made according to law.

ORDERS

A writ of certiorari issue quashing the decision of the Second Respondent dated 7 April 2014.
A writ of mandamus issue remitting the matter to the Second Respondent to consider and determine according to law the application made to it by the Applicant on 4 July 2013 for review of the delegate of the First Respondent’s decision.
The First Respondent pay the Applicant costs fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 876 of 2014

JANI VATA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicant first filed an Application in this Court on 9 May 2014. He now proceeds on an Amended Application filed on 11 March 2015. The Applicant seeks judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) made on 7 April 2014 which affirmed a decision made on 3 July 2013 of a Delegate of the First Respondent (‘the Delegate’) to cancel the Applicant’s permanent Employer Nomination Scheme (Subclass 856) visa (‘the visa’). The orders sought by the Applicant are that the decision of the Tribunal be quashed; that a writ of mandamus issue, directed to the Tribunal, requiring it to determine the Applicant’s application according to law; and an order that the First Respondent pay the Applicant’s costs of the…

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 1735
Decision Date: 26 June 2015

CaseChat Overview and Summary

The applicant, Vata, sought judicial review of a decision by the Minister for Immigration to refuse to grant her a protection visa. The Minister's decision was based on the applicant's alleged failure to satisfy the criteria for a protection visa under section 36(2)(b) of the *Migration Act 1958* (Cth), specifically that she did not hold a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The matter came before Judge Hartnett of the Federal Circuit Court of Australia.

The central legal issue before the Court was whether the Minister's decision was affected by an error of law, specifically whether the delegate's assessment of the applicant's claims was reasonable and whether the delegate properly considered all relevant evidence. The applicant contended that the delegate failed to adequately assess the risk of harm she would face upon return to her country of origin, and that the delegate's adverse credibility findings were not open on the evidence.

Judge Hartnett found that the delegate had failed to properly consider the cumulative effect of the risks the applicant claimed she would face. The delegate had assessed each risk individually and found them not to reach the threshold for protection, but had not adequately considered how these risks, taken together, might create a real chance of significant harm. The Court reiterated the principle that a delegate must consider the totality of the evidence and the cumulative impact of various factors when assessing a protection visa claim. The delegate's failure to do so constituted an error of law.

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

Orders