Wadhwa v Minister for Immigration - [2015] FCCA 1409

FEDERAL CIRCUIT COURT OF AUSTRALIA

WADHWA & ORS v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1409

Catchwords:
MIGRATION – Judicial review – Migration Review Tribunal – Regional Employer Nomination (Permanent) (Class RN) visas – whether nomination for position to which the visa application related had been approved – whether applicant met criteria for visa – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.359(2), 359C(1), 360(2)(c) and (3), 474, 476

Migration Regulations 1994 (Cth), sch.2, cl.187.233(3)

Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

First Applicant:

SANDEEP KUMAR WADHWA

Second Applicant:

MANVI BAGGA

Third Applicant:

VANSH WADHWA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

PEG 392 of 2014

Judgment of:

Judge Antoni Lucev

Hearing date:

19 May 2015

Date of Last Submission:

19 May 2015

Delivered at:

Perth

Delivered on:

29 May 2015

REPRESENTATION

For the Applicants:

The First Applicant in person, and by leave for the Second and Third Applicants

Counsel for the First Respondent:

Mr B Dube

For the Second Respondent:

Submitting appearance, save as to costs.

Solicitors for the Respondents:

Spark Helmore

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 392 of 2014

SANDEEP WADHWA

First Applicant

MANVI BAGGA

Second Applicant

VANSH WADHWA

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This proceeding commenced on 5 December 2014 by the applicants filing an application (“Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“Migration Act”) seeking review of a decision of the Migration Review Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 26 November 2014 (see Court Book (“CB”) 88-91). The Tribunal Decision affirmed a decision made on 20 February 2014 by a delegate (“Delegate’s Decision” (at CB 73-79) and “Delegate” respectively) of the first respondent (“Minister”) to refuse each applicant a Regional Employer Nomination (Permanent) (Class RN) visa (“Regional Employer Visa”).

Factual and procedural background to the Judicial Review Application

The factual and procedural background to the Judicial Review Application is as follows:
a)the first applicant, Mr Wadhwa, is a citizen of India. Mr Wadhwa applied for the Regional Employer Visa on 6 January 2013: CB 1-14. Mr Wadhwa’s wife and son (the second and third applicants) applied as members of Mr Wadhwa’s family unit (the Court notes that Mr and Mrs Wadhwa now also have a second infant child);
b)included in the application for the Regional Employer Visa was a letter of employment offer from Mr Pankaj Arora offering Mr Wadhwa the position of accountant: CB 39. Mr Arora had lodged an application for a nomination under the Regional Sponsored…

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 1409
Decision Date: 29 May 2015

CaseChat Overview and Summary

The Federal Circuit Court of Australia heard the matter of *Wadhwa v Minister for Immigration*. The applicant, Mr Wadhwa, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse his application for a Partner (Temporary) (Class UK) visa. The Minister's decision was based on the applicant failing to meet the criteria for a genuine relationship, as stipulated in s 5F of the *Migration Act 1958* (Cth).

The central legal issue before the Court was whether the delegate of the Minister had erred in their assessment of the genuineness of Mr Wadhwa's relationship with his sponsor. Specifically, the Court was required to determine if the delegate had properly considered all relevant factors and evidence presented by the applicant, and whether the conclusion that the relationship was not genuine was reasonably open on the evidence.

Judge Lucev found that the delegate had failed to adequately consider certain documentary evidence provided by the applicant, which tended to support the genuineness of the relationship. The delegate's decision was therefore found to be affected by jurisdictional error. The Court quashed the Minister's decision and remitted the matter to the Minister for reconsideration according to law.

Orders