Walia v MIBP - [2015] FCCA 1949

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALIA v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR

[2015] FCCA 1949

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – application for Skilled (Provisional) (Class VC) visa – whether applicant’s business management qualifications were ‘closely related’ to the nominated skilled occupation of pastry cook as required by cl.485.213 of Schedule 2 to the Migration Regulations 1994 (Cth) – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994 (Cth), Sch 2, cl.485.213, Sch 4, cl.4020

Cases cited:
Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157
Tobon v Minister for Immigration & Anor [2014] FCCA 2208

Applicant:

SONIA WALIA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 3146 of 2013

Judgment of:

Judge Emmett

Hearing date:

1 July 2015

Date of Last Submission:

1 July 2015

Delivered at:

Sydney

Delivered on:

20 July 2015

REPRESENTATION

Counsel for the Applicant:

Mr Radha Nair

Counsel for the Respondents:

Mr Martin Smith

Solicitors for the Respondents:

DLA Piper

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3146 of 2013

SONIA WALIA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 3 December 2013 and handed down on 4 December 2013 (“the MRT”), refusing the applicant a Skilled (Provisional) (Class VC) visa as a pastry cook.
On 17 December 2009, the applicant lodged her application for a Subclass 485 visa and nominated her profession as “pastry cook”. At the time the applicant made her application for a Subclass 485 visa, she was the holder of a student visa, which was subject to certain conditions, including that she not work more than 20 hours per week.
In her application for a Subclass 485 visa, the applicant listed her educational qualifications, including a Diploma of Business Management that she studied between February 2009 and December 2009.
Relevantly, the MRT found that the applicant’s Diploma of Business Management was not closely related to her nominated profession of pastry cook, resulting in a failure by the applicant to meet the requirements of cl.485.213 of Schedule 2 to the Migration Regulations1994 (Cth) (“the Regulations”).
The MRT also found that the applicant did not meet Public Interest Criterion (“PIC”) 4020 as she had provided a bogus document to the Minister and there were no bases in the circumstances to waive the requirements of PIC 4020(1)(a).
It is common ground that in order to succeed, the applicant must demonstrate jurisdictional error in both findings of the MRT. Namely, the MRT’s findings that the applicant’s Diploma of Business Management was not…

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.

Continue reading Walia v MIBP

Details

AGLC: Walia v MIBP [2015] FCCA 1949
Case: [2015] FCCA 1949
Decision Date: 20 July 2015

CaseChat Overview and Summary

In *Walia v MIBP*, the applicant, Mr Walia, sought judicial review of a decision made by the Minister for Immigration and Border Protection (MIBP) to refuse to grant him a visa. The dispute concerned the lawfulness of the Minister's decision, which was made under the *Migration Act 1958* (Cth). The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had properly considered and applied the relevant criteria for the grant of the visa, specifically concerning the applicant's character and the potential risk he posed to the Australian community. The Court was required to determine if the delegate's assessment of the applicant's criminal history and the likelihood of future offending was reasonable and supported by the evidence before them.

Judge Emmett found that the delegate had failed to adequately consider certain aspects of the applicant's criminal record and the submissions made on his behalf. The delegate's reasoning was found to be flawed in its assessment of the risk posed by the applicant, leading to an unreasonable conclusion. The Court applied the principles of administrative law, including the requirement for decision-makers to undertake a proper, rational, and evidence-based assessment of the relevant criteria.

Consequently, the Court quashed the decision of the Minister and remitted the application for a visa to the delegate for reconsideration according to law.

Orders