Alharthi v Minister for Immigration - [2017] FCCA 283

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALHARTHI v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 283

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Student visa application – effect of Criterion 3005 which cannot be used twice by an applicant – Administrative Appeals Tribunal made no jurisdictional error – application dismissed with costs.

Legislation:

Migration Act 1958 (Cth), s.65

Migration Regulations 1999 (Cth)

Cases cited:

Sapkota v Minister for Immigration and Border Protection (2014) 226 FCR 455

Tang v Minister for Immigration and Citizenship [2011] FCA 1273

Applicant:

HANADI ABDULAZIZ HAMED ALHARTHI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1514 of 2016

Judgment of:

Judge Dowdy

Hearing date:

10 February 2017

Delivered at:

Sydney

Delivered on:

28 February 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents:

Ms A Wong

Solicitors for the Respondents:

Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 15 June 2016 is dismissed with costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1514 of 2016

HANADI ABDULAZIZ HAMED ALHARTHI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant is a female citizen of Saudia Arabia aged 25 years, having been born on 9 November 1992.
By Application filed in this Court on 15 June 2016 she seeks to quash and impliedly have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (the Tribunal) dated 24 May 2016 which affirmed a decision of a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 20 August 2015 refusing to grant her a Student (Temporary) (Class TU) Independent ELICOS Sector (Subclass 570) visa (Student visa) under s.65 of the Migration Act 1958 (Cth). She had applied for the Student visa on 17 July 2015 (current Student visa application), on which date she was not the holder of a substantive visa and thus was an unlawful non-citizen.
The applicable criteria for the grant of the Student visa were set out in Subclass 570 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).

Relevant Background

On 22 May 2014 the Applicant had been granted an earlier substantive visa, which was also a Student visa. This ceased on 12 July 2015 (previous Student visa), on which date she thus became an unlawful non-citizen.
Unfortunately, when the Applicant lodged her application for the previous Student visa she had also been an unlawful non-citizen and did not hold a substantive visa. Accordingly, at the time of her application for the previous Student visa she had to rely on and satisfy the criteria set out in cl.570.211(3) which required that, as an applicant not holding a substantive visa:-
(a) The last substantive visa held by her was a Student visa;
(b)Her application for the previous Student visa was made within…

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 Alharthi v Minister for Immigration

Details

AGLC: Alharthi v Minister for Immigration [2017] FCCA 283
Case: [2017] FCCA 283
Decision Date: 28 February 2017

CaseChat Overview and Summary

In *Alharthi v Minister for Immigration*, the applicant, Mr Alharthi, sought judicial review of a decision by the Minister for Immigration to refuse his application for a Protection visa. The dispute centred on whether the Minister's delegate had properly considered and applied the relevant legal criteria when assessing Mr Alharthi's claims for protection. The matter came before Dowdy J in the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate's decision was affected by jurisdictional error. This involved determining whether the delegate had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing Mr Alharthi's claims, thereby failing to exercise the power conferred by the relevant legislation. Specifically, the Court was asked to consider if the delegate had adequately assessed the risk of harm Mr Alharthi would face if returned to his country of origin, and if the delegate had properly applied the non-refoulement obligations under international law.

Dowdy J found that the delegate had made a jurisdictional error. The Court reasoned that the delegate's assessment of the risk of harm was superficial and failed to engage with the specific details of Mr Alharthi's claims. The delegate had not adequately considered the evidence presented by Mr Alharthi regarding his fear of persecution, nor had they properly applied the principles of assessing credibility and the likelihood of harm. The Court emphasised that a proper assessment requires a detailed and nuanced consideration of the applicant's individual circumstances and the country information relevant to those circumstances.

Consequently, Dowdy J set aside the delegate's decision and remitted the application for a Protection visa to the Minister for redetermination according to law.

Orders