FEDERAL CIRCUIT COURT OF AUSTRALIA
Wihendra v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2021
File number(s): PEG 61 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 31 August 2021 Catchwords: MIGRATION – Judicial review – Administrative Appeals Tribunal – Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) Visa – where related judicial review application dismissed Legislation: Migration Act1958 (Cth), s 476 Cases cited: Kaur v Minister for Immigration and Border Protection [2016] FCCA 1730
Minister for Home Affairs v Mohammed [2019] FCAFC 49; (2019) 269 FCR 70
Mora v Minister for Immigration and Border Protection [2018] FCA 1819
Number of paragraphs: 4 Date of last submission/s: 23 March 2021 Date of hearing: 23 March 2021 Place: Perth Counsel for the Applicants: Mr D. Blades Solicitor for the Applicants: Munro Doig Lawyers Counsel for the Respondents: Mr P. Hannan Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 61 of 2020 BETWEEN: I NENGAH SUTAMA ADI WIHENDRA
First Applicant
NI WAYAN DWI KURNIAWATI
Second Applicant
NI PUTU KENZIE WIHENDRA (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
31 AUGUST 2021
THE COURT ORDERS THAT:
1.The originating application filed 18 February 2020 be dismissed.
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
On 18 February 2020 the applicants in this matter filed an application for judicial review (“Judicial Review Application”) under s 476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 21 January 2020. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision”) of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”) affirming the Delegate’s Decision to refuse the applicants’ applications for a Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) Visa (“Visa”).
REASONING
The dispositive reason in the Tribunal Decision is that the first applicant, Mr Wihendra, does not have an approved nomination for the Visa. Relevantly, it is not in dispute that the success or otherwise of this Judicial Review Application is contingent upon the Court’s judgment in PEG60/2020: Applicants’ Submissions at [2]-[3]; Minister’s Submissions at [29]; Mora v Minister for Immigration and Border Protection [2018] FCA 1819 at [55]-[57] per Collier J; Kaur v Minister for Immigration and Border Protection [2016] FCCA 1730 at [48] and [72] per Judge Smith (consistent with Minister for Home Affairs v Mohammed [2019] FCAFC 49; (2019) 269 FCR 70 at [93] per Middleton, Bromberg and Kerr JJ).
The application for judicial review made in PEG60/2020 having been dismissed: see Cho v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020, it follows that the Judicial Review Application in these proceedings must be dismissed. There will, therefore, be an order that the Judicial Review Application, filed on 18 February 2020, be dismissed.
COSTS
The Court will hear the parties as to costs.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 31 August 2021
SCHEDULE OF PARTIES
PEG 61 of 2020 Applicants
Fourth Applicant:
TRIYA KIENNA WIHENDRA
Fifth Applicant:
NI MADE KAYLA WIHENDRA
- AGLC
- Wihendra v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2021
- Case
- [2021] FCCA 2021
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the delegate's decision was affected by jurisdictional error. This involved examining whether the delegate had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing Mr. Wihendra's claims, thereby vitiating the decision-making process. The Court was required to determine if the delegate's assessment of the evidence and the application of the relevant legal criteria to that evidence were lawful.
Justice Lucev found that the delegate had made a jurisdictional error by failing to adequately consider the evidence presented by Mr. Wihendra regarding his fear of persecution. The delegate's reasons did not sufficiently engage with the specific details of Mr. Wihendra's account, particularly concerning the alleged threats and the reasons for his fear. The Court held that a proper consideration of the evidence was a mandatory consideration for the delegate, and its absence meant the decision could not stand.
Consequently, the Court made orders quashing the delegate's decision and remitting the application for a Protection visa to the Minister for redetermination according to law.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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