Adigbo v Minister for Immigration - [2016] FCCA 2250

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADIGBO v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2250

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.359A, 499

Migration Regulations 1994 (Cth)

Cases cited:

Ghimire v Minister for Immigration [2014] FCA 899

Minister for Immigration v Khadgi (2010) 190 FCR 248

Singh v Minister for Immigration (2001) 109 FCR 152

WAEE v Minister for Immigration (2003) 75 ALD 630

Applicant:

CHRISTOPHER ADIGBO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 3218 of 2015

Judgment of:

Judge Driver

Hearing date:

30 August 2016

Delivered at:

Sydney

Delivered on:

30 August 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms E Warner Knight of Australian Government Solicitor

INTERLOCUTORY ORDERS

Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3218 of 2015

CHRISTOPHER ADIGBO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application to review a decision of the Administrative Appeals Tribunal, formerly the Migration Review Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Adigbo, a temporary student visa. Background facts relating to this matter are set out in the Minister’s outline of legal submissions filed on 23 August 2016.
Mr Adigbo is a citizen of Ghana. He initially arrived in Australia on a student visa on 11 February 2014, valid to 10 February 2015. This first student visa was cancelled before the expiry date, on 15 January 2015, after the applicant cancelled his Certificate of Enrolment (COE) in an Advanced Diploma of IT[1]. He then held a bridging visa which allowed him to study[2].
[1] [5] (Paragraph references are reference to the Tribunal’s decision )
[2] [10]
Mr Adigbo applied to the Minister’s Department for a further student visa on 6 February 2015.
On 19 February 2015, a delegate of the Minister refused to grant the further student visa on the basis that Mr Adigbo did not satisfy clause 572.223(2) of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) because he had not provided evidence that he met the English proficiency requirements.
On 7 April 2015 Mr Adigbo applied for review of that decision with the Tribunal.

The evidence before the Tribunal and the Tribunal’s decision

Prior to the scheduled hearing on 17 August 2015 Mr Adigbo provided evidence of English proficiency and financial capacity as required by Schedule 5A. Mr Adigbo also submitted a letter from his education provider dated 9 February 2015,…

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: [2016] FCCA 2250
Decision Date: 30 August 2016

CaseChat Overview and Summary

In *Adigbo v Minister for Immigration*, Driver J of the Federal Court of Australia considered an application for judicial review concerning a decision made by the Minister for Immigration. The applicant, Mr Adigbo, sought to challenge the lawfulness of the Minister's decision to refuse his application for a protection visa.

The central legal issue before the Court was whether the Minister's delegate had failed to consider relevant considerations and had taken into account irrelevant considerations when assessing Mr Adigbo's claims for protection. Specifically, the Court was asked to determine if the delegate's assessment of the applicant's credibility and the potential for harm he might face upon return to his country of origin was vitiated by errors of law.

Driver J's reasoning focused on the principles of administrative law, particularly the requirement for decision-makers to undertake a proper and comprehensive assessment of all relevant evidence. The Court examined the delegate's written reasons for decision to ascertain if they demonstrated a failure to engage with key aspects of Mr Adigbo's testimony and supporting documentation. The legal principle applied was that a failure to consider relevant material or the consideration of irrelevant material can render an administrative decision unlawful.

The Court found that the delegate had indeed failed to properly consider crucial aspects of the applicant's evidence, leading to an erroneous assessment of his claims. Consequently, Driver J set aside the Minister's decision and remitted the matter to the Minister for redetermination according to law.

Orders