Ali v Minister for Immigration - [2017] FCCA 2478

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALI v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2478

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a temporary student visa – applicant found not to be a genuine student – applicant admitting he had no interest in the vocational course in which he was enrolled – applicant genuinely interested in higher education studies which had been interrupted – whether the Tribunal erred in its determination as to the genuineness of the applicant as a student considered – no jurisdictional error – observations on Ministerial intervention.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.351, 499

Migration Legislation Amendment (2016 Measures No.1) Regulations 2016
Migration Regulations 1994 (Cth)

Cases cited:

Ghimire v Minister for Immigration [2014] FCA 899
Hasnat v Minister for Immigration & Anor [2013] FCCA 1922
Minister for Immigration v Awan [2003] FCAFC 140
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

Applicant:

SYED WAQAR ALI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2879 of 2016

Judgment of:

Judge Driver

Hearing date:

12 October 2017

Delivered at:

Sydney

Delivered on:

3 November 2017

REPRESENTATION

Counsel for the Applicant:

Mr A Moutasallem

Solicitors for the Applicant:

MIC Lawyers

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

Mills Oakley

ORDERS

The application filed on 21 October 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2879 of 2016

SYED WAQAR ALI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant, Mr Ali, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 21 September 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Ali a temporary student visa.
The following statement of background facts is derived from the submissions of the parties.
Mr Ali is a citizen of Pakistan. All of his family reside in Pakistan.
Mr Ali was first granted a student subclass 573 visa offshore on 12 February 2013 which was valid until 30 September 2015. He arrived in Australia on 28 May 2013.
Mr Ali was enrolled in an Advanced Master of Professional Accounting at the University of Western Sydney (UWS) and completed half his course before an accident at work and the death of a family member caused him to attempt to defer his studies. Mr Ali claimed that he received no response from UWS. He then says he travelled to Mackay in Queensland in an attempt to enrol at the University of Southern Queensland (USQ).[1] His confirmation of employment with UWS was cancelled and his attempts to enroll at the USQ were unsuccessful.
[1] The delegate’s decision identifies the Central Queensland University at CB 108-112
On 29 September 2015, Mr Ali applied for a student (subclass 572) visa on the basis of his enrolment in…

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: [2017] FCCA 2478
Decision Date: 3 November 2017

CaseChat Overview and Summary

In *Ali v Minister for Immigration*, the applicant, Mr. Ali, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant Mr. Ali a protection visa. Mr. Ali contended that the Minister's decision was affected by jurisdictional error.

The primary legal issue before Judge Driver was whether the delegate of the Minister had failed to consider relevant considerations and had taken into account irrelevant considerations when assessing Mr. Ali's claim for a protection visa. Specifically, the court was asked to determine if the delegate's assessment of Mr. Ali's credibility and the assessment of the risk of harm he faced in his country of origin were vitiated by legal error.

Judge Driver found that the delegate had failed to adequately consider crucial aspects of Mr. Ali's evidence regarding his fear of persecution. The delegate's assessment was found to be based on an incomplete and therefore flawed understanding of the material before them. This failure to properly engage with and assess the entirety of the evidence constituted a failure to consider relevant considerations, leading to a jurisdictional error in the decision-making process. The court quashed the Minister's decision.

Orders