Aslan v Minister for Immigration - [2015] FCCA 1116

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASLAN v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1116

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – cancellation of a student visa – applicant not a genuine student – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.116

Mazumdar v Minister for Immigration [2012] FMCA 1170
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Minister for Immigration v Li [2013] HCA 18
NABE v Minister v Immigration (No.2) (2004) 219 ALR 27
Yu v Minister for Immigration (2009) 236 FLR 251

Applicant:

AHMET SAIT ASLAN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1939 of 2014

Judgment of:

Judge Driver

Hearing date:

1 May 2015

Delivered at:

Sydney

Delivered on:

1 May 2015

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Respondents:

Mr M Glavac of Clayton Utz

ORDERS

The application filed on 11 July 2014 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 $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1939 of 2014

AHMET SAIT ASLAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 15 June 2014. The Tribunal affirmed a decision of the delegate of the Minister to cancel the applicant, Mr Aslan’s, student visa.
Background facts relating to this matter are set out in written submissions filed by the Minister on 24 April 2015.
Mr Aslan is a citizen of Turkey who arrived in Australia in February 2012 on a student visa.
As explained in Mr Aslan's letter to the Tribunal dated 14 January 2015[1]:
a)on 15 November 2013 the delegate sent Mr Aslan a Notice of Intention to Consider Cancellation (NOICC) of his student visa[2]. The NOICC was addressed to Mr Aslan at “39/15 Livingstone Road, PETERSHAM NSW 2049 AUSTRALIA” (emphasis added). At the time, Mr Aslan’s address was actually “15/39 Livingstone Road, PETERSHAM NSW 2049 AUSTRALIA” (emphasis added); and
b)Mr Aslan did not respond to the NOICC, and on 5 December 2013 the delegate cancelled Mr Aslan’s student visa under s.116(1)(b) of the Migration Act 1958 (Cth) (Migration Act), on the basis that Mr Aslan did not comply with a condition of his student visa. Mr Aslan only received the Notification of Decision on 9 January 2014.
[1] Court Book (CB) 33-34
[2] CB 4-9

Tribunal's decision

On 14 January 2014 Mr Aslan applied to the Tribunal for review[3]. The Tribunal was unable to make a decision favourable to Mr Aslan on the material before it and invited him to attend a hearing on 27 May 2014[4].
[3] CB 22-32
[4] CB 61-62
At the time the delegate cancelled Mr Aslan’s student visa, condition 8202…

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.

Keep reading for free

Create a free CaseChat account to read Aslan v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] FCCA 1116
Decision Date: 1 May 2015

CaseChat Overview and Summary

In *Aslan v Minister for Immigration*, the applicant, Mr Aslan, sought judicial review of a decision by the Minister for Immigration to refuse to grant him a protection visa. The dispute concerned the Minister's assessment of Mr Aslan's claims of persecution. The matter came before Judge Driver of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision was affected by jurisdictional error. This involved determining whether the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing Mr Aslan's claims for protection, thereby vitiating the decision-making process.

Judge Driver found that the delegate had failed to adequately consider crucial aspects of Mr Aslan's evidence regarding his fear of persecution. Specifically, the delegate's assessment did not sufficiently engage with the detailed account provided by Mr Aslan about the specific threats he faced and the reasons for his fear. This failure to properly consider relevant evidence constituted a jurisdictional error. The Court therefore quashed the Minister's decision.

Orders