AHMAD v Minister for Immigration - [2018] FCCA 1177

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHMAD v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1177

Catchwords:
MIGRATION – Application for medical treatment (Class UB) visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by failing to consider the medical condition and circumstances of the applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Amendment (Temporary Activity Visas) Regulation 2016 (Cth)
Migration Regulations 1994 (Cth), cll.602.212, 602.213, criterion 3001 of sch.3

Cases cited:

Cakau v Minister for Immigration & Border Protection [2017] FCCA 952

Applicant:

KHALIL AHMAD

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2046 of 2017

Judgment of:

Judge Smith

Hearing date:

12 April 2018

Date of Last Submission:

12 April 2018

Delivered at:

Sydney

Delivered on:

12 April 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents:

Mr A Moss, Clayton Utz

ORDERS

The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2046 of 2017

KHALIL AHMAD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

The applicant arrived in Australia on 28 March 2012 on a tourist visa that expired on 28 June 2012. That tourist visa was the applicant’s last substantive visa. On 5 January 2017, almost five years later, the applicant lodged an application for a medical treatment (class UB) visa. The criteria for the grant of that visa were discussed by me in the case Cakau v Minister for Immigration & Border Protection [2017] FCCA 952 at [8] to [14]. The relevant form of cl.602.213 of the Migration Regulations 1994 (Cth) was different for the purposes of this application in that the reference in sub-cl.(4) had had removed from it the subclass 426 visa following the commencement of the Migration Amendment (Temporary Activity Visas) Regulation 2016 (Cth) (Amendment Regulation). I will return to that in due course.
On 9 January 2017 a delegate of the Minister of Immigration made a decision to refuse to grant the applicant a medical treatment visa, and the applicant applied to the Administrative Appeals Tribunal for review of that decision. The applicant was invited to, and attended, a hearing conducted by the Tribunal on 31 May 2017. The Tribunal made its decision on 1 June 2017 affirming the decision of the delegate. The Tribunal found that the applicant last held a substantive visa on 28 June 2016 and did not hold a substantive temporary visa at the time of the application. It noted that the last visa held by the applicant was neither a subclass 403 or 426 visa, and as such, the applicant must meet the sch.3 criteria.
The Tribunal then turned to consider the sch.3 criteria. It found that the applicant had lodged the current application over six months since he last held a substantive visa. That is clearly wrong…

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 AHMAD v Minister for Immigration

Details

AGLC: AHMAD v Minister for Immigration [2018] FCCA 1177
Case: [2018] FCCA 1177
Decision Date: 12 April 2018

CaseChat Overview and Summary

In *Ahmad v Minister for Immigration*, the applicant, Mr. Ahmad, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant Mr. Ahmad a visa, a decision Mr. Ahmad contended was unlawful. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa application was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister, in assessing Mr. Ahmad's application, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Judge Smith reasoned that the delegate's assessment had indeed been flawed. The Court found that the delegate had placed undue weight on certain information while failing to adequately consider other crucial evidence presented by Mr. Ahmad. This failure to properly weigh all relevant factors, in the Court's view, constituted a failure to exercise the power conferred by the relevant legislation according to its terms, leading to a jurisdictional error. The Court applied the principles of administrative law concerning the proper exercise of statutory powers, emphasizing the obligation of decision-makers to undertake a comprehensive and balanced assessment of all material before them.

Consequently, the Court quashed the Minister's decision and remitted the matter to the Minister for redetermination according to law.

Orders