AMANDEEP v Minister for Immigration - [2020] FCCA 1425

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMANDEEP v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1425

Catchwords:
MIGRATION – Student visa – where the applicant previously held a student visa – where applicant had undertaken several courses of study – applicable criteria – financial capacity – where evidence of financial capacity predated application by twelve months – where the applicant was asked to provide additional information to ascertain financial profile – where applicant invited to furnish more detailed financial information – where no information provided – criterion of financial capacity not satisfied – where classes of student visa amended with effect from 2016 – where amendments to regulation not retrospective – where applicable criteria not satisfied – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 474, 476

Migration Regulations 1994 (Cth), Sch.2, 5A, pt.573

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

Cases cited:

Craig v South Australia (1995) 184 CLR 163 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Pyaneeandee v Minister for Immigration and Border Protection [2017] FCCA 861
Singh v Minister for Immigration and Border Protection [2019] FCA 2149

Applicant:

AMANDEEP

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2110 of 2016

Judgment of:

Judge A. Kelly

Hearing date:

13 May 2020

Date of Last Submission:

13 May 2020

Delivered at:

Melbourne

Delivered on:

4 June 2020

REPRESENTATION

The Applicant:

In person

Solicitor advocate for the First Respondent:

Mr. Coenraad van der Westhuizen

Solicitors for the Respondents:

Mills Oakley

ORDERS

By consent, pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application dated 28 September 2016 be dismissed.
The applicant pay the costs of the first respondent fixed at $4,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2110 of 2016

AMANDEEP

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application dated 28 September 2016, the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 31 August 2016 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Student visa (visa) pursuant to s 65 of the Migration Act 1958 (Act).
The application should be dismissed. In summary, I have concluded that, contrary to the applicant’s grounds of review, the Tribunal did consider the information and material contained 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: [2020] FCCA 1425
Decision Date: 4 June 2020

CaseChat Overview and Summary

The applicant, Amandeep, sought judicial review of a decision by the Minister for Immigration to refuse her application for a student visa. The dispute centred on whether Amandeep had satisfied the applicable criteria for the visa, specifically the criterion relating to financial capacity. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether Amandeep had met the financial capacity requirements for the student visa. This involved determining the relevance of financial evidence that predated her application by twelve months and considering the effect of amendments to the student visa regulations that came into force in 2016. The Court also had to assess whether these amendments had retrospective application.

Judge A. Kelly found that the evidence of financial capacity provided by Amandeep predated her visa application by a significant period. The Department had requested further, more detailed financial information to ascertain her financial profile, but this was not provided. Consequently, the Court concluded that the criterion of financial capacity had not been satisfied. Furthermore, the Court determined that the amendments to the student visa regulations, which took effect in 2016, were not retrospective and therefore did not apply to Amandeep's application. As the applicable criteria were not satisfied, the application was dismissed.

Orders