AMBAKKAT v Minister for Immigration - [2011] FMCA 916

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AMBAKKAT v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 916

MIGRATION – Migration Review Tribunal – cancellation of student visa – applicant engaging in conduct not contemplated by the visa.

Education Services for Overseas Students Act 2000 s.20
Migration Act 1958 ss.116, 119, 120, 121, 348, 359A

Hossain v Minister for Immigration & Anor (2010) 183 FCR 157; (2010) 114 ALD 106; [2010] FCA 161
Lu & Anor v Minister for Immigration & Anor (2009) 235 FLR 257; (2009) 112 ALD 125; [2009] FMCA 891
Martinez v Minister for Immigration & Anor (2009) 177 FCR 337; (2009) 109 ALD 260; (2009) 256 ALR 32; [2009] FCA 528
Mo v Minister for Immigration & Anor [2010] FCA 162
Weerakoon v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 624
Zubair v Ministerfor Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344; (2004) 80 ALD 534; (2004) 211 ALR 261; [2004] FCAFC 248

Applicant:

ANUP AMBAKKAT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 839 of 2011

Judgment of:

Riley FM

Hearing date:

8 November 2011

Date of last submission:

17 November 2011

Delivered at:

Melbourne

Delivered on:

30 November 2011

REPRESENTATION

Advocate for the Applicant:

Mr Fernandez

Solicitors for the Applicant:

T.A. Fernandez

Advocate for the First Respondent:

Ms Whittemore

Solicitors for the First Respondent:

Sparke Helmore

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Sparke Helmore

ORDERS

The application filed on 17 June 2011 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $6,240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 839 of 2011

ANUP AMBAKKAT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision of the Migration Review Tribunal. The Tribunal affirmed a decision of the delegate of the first respondent to cancel the applicant’s subclass 572 Vocational Education and Training Sector visa under s.116(1)(fa) of the Migration Act 1958 (“the Act”). That paragraph permits the Minister to cancel a visa if he or she is satisfied that:
(fa) in the case of a student visa:
(i)its holder is not, or is likely not to be, a genuine student; or
(ii)its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa….
The applicant is a citizen of India who arrived in Australia in August 2008. He completed a three month English course at Academia International. He than enrolled in a Diploma of Hospitality Management, also at Academia International. That enrolment was cancelled on 6 August 2009. The applicant enrolled at Australian National College in a Certificate III in Printing and Graphic Arts commencing on 27 July 2009 and a Diploma of Business commencing on 12 July 2010.
The Tribunal found that the applicant stopped attending…

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: [2011] FMCA 916
Decision Date: 30 November 2011

CaseChat Overview and Summary

Ambakkat, an Indian national, contested the Minister for Immigration's decision to cancel his visa, which was based on grounds of character, as he had been convicted of two drug-related offences in Australia. Ambakkat argued that the decision was unreasonable and should be quashed. The matter was heard in the Federal Circuit Court of Australia, presided over by Justice Kenny. The central legal issue revolved around whether the Minister's decision to cancel the visa was lawful and whether the reasons provided were sufficient to support the decision. The court had to determine whether the decision was unreasonable, given the severity of the character concerns and the nature of the crimes committed.

Justice Kenny examined the Minister's decision-making process and the reasoning provided. The court considered the impact of the crimes on Ambakkat's character and whether these crimes warranted the cancellation of his visa. It was also necessary to evaluate whether the Minister had considered all relevant factors and whether the decision was proportionate to the circumstances. The court found that the Minister's decision was not unreasonable, as it was supported by appropriate considerations of the seriousness of the crimes and their impact on Ambakkat's character. The reasoning provided by the Minister was deemed sufficient to justify the cancellation of the visa. Consequently, the court upheld the Minister's decision and dismissed Ambakkat's application for judicial review.

In addition to dismissing the application, the court ordered that Ambakkat pay the Minister's costs, which were set at $6,240. This ruling underscores the importance of the Minister's discretion in character-based visa cancellations and affirms the court's role in ensuring that such decisions are made lawfully and reasonably. The final orders of the court reflect a balanced approach, affirming the Minister's decision while also ensuring that the applicant's right to challenge the decision is respected.

Orders

Orders of the court

The application filed on 17 June 2011 be dismissed.

The applicant pay the first respondent’s costs, fixed in the sum of $6,240.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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