Aslam v Minister for Immigration - [2018] FCCA 1764

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASLAM v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1764

Catchwords:
MIGRATION – Application for a Student (class TU) visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal failed to consider the applicant’s mother’s health when determining whether the applicant had a genuine intention to stay in Australia temporarily – no jurisdictional error – application dismissed.

PRACTICE & PROCEDURE – Application to amend originating application raising new ground – whether it is in interests of the administration of justice to grant leave to amend – application refused.

Legislation:

Migration Act 1958 (Cth), ss.426A, 499

Migration Regulations 1994 (Cth), cls.572.223, 573.223

Cases cited:

Chen v Minister for Immigration & Multicultural Affairs (2000) 106 FCR 157; [2000] FCA 1901
Tuitaalili v Minister for Immigration & Citizenship (2012) 126 ALD 48; [2012] FCAFC 24

Uelese v Minister for Immigration & Border Protection (2015) 256 CLR 203; [2015] HCA 15

Applicant:

BILAL ASLAM

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1178 of 2017

Judgment of:

Judge Smith

Hearing date:

16 April 2018

Date of Last Submission:

16 April 2018

Delivered at:

Sydney

Delivered on:

16 April 2018

REPRESENTATION

Solicitors for the Applicant:

Mr M Newman, Newman & Associates

Solicitors for the Respondents:

Ms E Cheesman, Clayton Utz

ORDERS

The applicant have leave to apply to amend the application.
The application for leave to amend the application is refused.
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1178 of 2017

BILAL ASLAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

The applicant seeks leave to amend his application. The application was made informally on the day of the hearing with little notice to the Minister. The applicant no longer wishes to rely on the grounds in the actual application and proposes instead to rely upon the following ground:
‘Contrary to the Tribunal’s assertion that it had looked (as it was required to do) for evidence of the applicant’s circumstance in their own country, it did not do so as evidenced by a suite of medical documents concerning the applicant’s mother (in his own country) having been submitted earlier by the applicant and having been totally ignored.’
(Emphasis in original)
The applicant, a citizen of Pakistan, applied for a student (class TU) visa, relevant to the type of course that he wished to undertake. He had to satisfy the criteria which was relevantly cl.572.223(1) of the Migration Regulations 1994 (Cth) which is:
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)    the applicant’s circumstances; and
(ii)    the applicant’s immigration history; and
(iii)     if the applicant…

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: [2018] FCCA 1764
Decision Date: 16 April 2018

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) regarding an application for a Student (class TU) visa. The applicant, Mr Aslam, sought to challenge the Tribunal's finding that he did not have a genuine intention to remain in Australia temporarily.

The primary legal issue before the Court was whether the Tribunal had failed to consider a relevant consideration, specifically the health of the applicant's mother, when assessing his genuine temporary entrant status. A secondary issue arose concerning the applicant's attempt to amend his originating application to introduce a new ground of review, and whether granting leave to amend would be in the interests of the administration of justice.

Justice Smith found that the Tribunal had not committed jurisdictional error. The Court reasoned that while the applicant's mother's health was a factor that *could* be considered, it was not a mandatory consideration in every case. The Tribunal had adequately considered the overall circumstances presented by the applicant, including his ties to his home country and his intentions regarding his studies, and had made a finding that was open to it on the evidence. Regarding the amendment application, the Court refused leave, finding that it was not in the interests of the administration of justice to permit the introduction of a new ground at that late stage.

The application for judicial review was dismissed.

Orders