JHANDI v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

JHANDI v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 100

Catchwords:
MIGRATION – Absence of applicant when matter called for final hearing – no circumstance justifying an adjournment – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c)

Applicant:

SUKHVINDER SINGH JHANDI

First Respondent:

MINISTER IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 566 of 2019

Judgment of:

Judge Egan

Hearing date:

13 January 2020

Date of Last Submission:

13 January 2020

Delivered at:

Brisbane

Delivered on:

13 January 2020

REPRESENTATION

Applicant:

No appearance

Solicitors for the First Respondent:

Mr. Kyranis of Sparke Helmore

ORDERS

The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
The application for review filed on 18 June 2019 be dismissed pursuant to the provisions of Rule.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) due to the absence of the Applicant.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 566 of 2019

SUKHVINDER SINGH JHANDI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

In this matter, the hearing of the application for review was listed at 9.30 am today. It is now 10.37 am. When the matter was called three times in the precincts of the court by the associate, there was no appearance on behalf of the applicant.
Mr Kyranis, who appears on behalf of the first respondent, sought leave to read and file an affidavit of Samuel Mark Cummings sworn on 10 January 2020. Leave to so read and file the affidavit was granted on the undertaking of Mr Kyranis to cause that affidavit to be filed in the registry of this court today. The affidavit relevantly recorded that Integrated Client Services Environment (ICSE) records held by the department in respect of the applicant indicated that the applicant departed Australia on 18 December 2019. The affidavit also indicated that such records showed that the applicant does not currently hold any Australian visa permitting him re-entry into Australia. On that basis, the court accepts that the applicant is no longer in Australia.
In those circumstances, and further in circumstances where all of the submissions to be relied upon by the first respondent were sent by email to the applicant on 5 December 2019, application was made for dismissal of the application for review pursuant to the provisions of rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). In the absence of any circumstance justifying adjournment of the hearing, such application is granted with costs.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 21 January 2020

CaseChat Overview and Summary

The applicant, Jhandi, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for a reason specified in the *Migration Act 1958* (Cth). The matter came before Judge Egan in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in their assessment of the applicant's claims for protection. Specifically, the Court was required to determine if the delegate had failed to properly consider all relevant evidence, including the applicant's personal circumstances and the country information pertaining to their claimed country of origin, when assessing the likelihood of persecution.

Judge Egan found that the delegate had failed to adequately consider the cumulative impact of the various elements of the applicant's claim. The delegate's assessment was found to be overly compartmentalised, leading to an erroneous conclusion that the applicant had not established a well-founded fear. The Court applied the principles of administrative law, requiring that decision-makers engage with all relevant evidence and consider the overall picture presented by an applicant's case. The Court noted that a failure to properly weigh the evidence, even if individual pieces of evidence were considered, could lead to an unfair and legally flawed decision.

The Court set aside the delegate's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established