Arshad v Minister for Immigration - [2020] FCCA 536

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARSHAD v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 536

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – applicant enrolled at the time of the Tribunal hearing but ceasing to be enrolled before the Tribunal decision – Tribunal basing its decision on the cessation of enrolment – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.359A, 360

Administrative Appeals Tribunal Act 1975 (Cth)
Federal Circuit Court Rules 2001 (Cth)

Cases cited:

Fard v Secretary, Department of Immigration [2016] FCA 417
Koon Wing Lau v Calwell [1949] HCA 65; (1949) 80 CLR 533
Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332

NAIS v Minister for Immigration (2005) 223 ALR 171

Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577

Applicant:

MUHAMMAD JUNAID ARSHAD

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2197 of 2019

Judgment of:

Judge Driver

Hearing date:

11 March 2020

Delivered at:

Sydney

Delivered on:

11 March 2020

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr G. Johnson

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application filed on 26 August 2019 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2197 of 2019

MUHAMMAD JUNAID ARSHAD

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Background

The applicant, Mr Arshad, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 23 July 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Arshad a temporary student visa.
Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 26 February 2020.
Mr Arshad is a citizen of Pakistan who on 9 December 2016 applied for a student visa.
On 29 May 2017 the delegate refused to grant Mr Arshad the visa on the basis the delegate was not satisfied he was a genuine temporary entrant as required under clause 500.212 of Schedule 2 of the Migration Regulations 1994 (Regulations).[1] Mr Arshad sought review of the delegate’s decision.
[1] Court Book (CB) 100
On 11 September 2018 the Tribunal invited Mr Arshad to appear before it to give evidence and present arguments pursuant to s.360 of the Migration Act 1958 (Cth) (Migration Act).[2] The Tribunal requested in the invitation to hearing that Mr Arshad provide particular information at least seven days before the hearing.[3] This included a copy of Mr Arshad’s confirmation of enrolment (COE) showing that he was currently enrolled in a course of study as defined…

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 536
Decision Date: 11 March 2020

CaseChat Overview and Summary

The applicant, Arshad, sought judicial review of a decision made by the Administrative Appeals Tribunal. The Tribunal had refused Arshad's application for a student visa. The central dispute concerned the basis upon which the Tribunal reached its decision, specifically whether it had made a jurisdictional error.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the Tribunal erred in law by basing its refusal of the student visa on the applicant's cessation of enrolment at the time the Tribunal handed down its decision, rather than at the time of the hearing.

Judge Driver found that the applicant was enrolled at the time of the Tribunal hearing, but had ceased to be enrolled by the time the Tribunal made its decision. The Court held that the Tribunal was entitled to consider the applicant's circumstances as they stood at the time of its decision. The Court reasoned that the Tribunal's function was to determine the merits of the application at the time of its decision, and that a change in enrolment status was a relevant factor in that determination. Accordingly, the Court concluded that the Tribunal had not made a jurisdictional error.

The application for judicial review was dismissed.

Orders