Awan v Minister for Immigration - [2020] FCCA 3134

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWAN v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 3134

Catchwords:
MIGRATION – Graduate visa – decision of the Administrative Appeals Tribunal – where the applicant did not sit an English Language Test prior to lodging visa application – where it is alleged that incorrect advice given to the applicant from a Departmental representative – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.351, 476

Migration Regulations 1994 (Cth), cl.485.212

Cases cited:

Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Kumar v Minister for Immigration and Border Protection [2014] FCA 1336
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Applicant:

MUHAMMAD QASIM AWAN

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 195 of 2020

Judgment of:

Judge Kendall

Hearing date:

17 November 2020

Date of Last Submission:

17 November 2020

Delivered at:

Perth

Delivered on:

19 November 2020

REPRESENTATION

Applicant:

In person

Counsel for the First Respondent:

Mr T Galvin

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Minter Ellison Lawyers

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 195 of 2020

MUHAMMAD QASIM AWAN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Pakistan. He appears to have arrived in Australia in March 2012 on a student visa (Court Book (“CB”) 31).
On 20 August 2018, the applicant applied for a Temporary Graduate (Graduate Work) (subclass 485) visa (the “visa”) (CB 18-60). Included in the visa application was confirmation of a booking and payment for an English Language Test that the applicant was scheduled to undertake on 22 August 2018 (CB 47-49).
On 27 September 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 67-74). The delegate found that the applicant did not meet cl.485.212 of the Migration Regulations 1994 (Cth) (the “Regulations”) as the applicant had not provided evidence that he had satisfied the English Language criterion in the three years prior to lodging his visa application.
On 12 October 2018, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 75-77).
The applicant attended a hearing before the Tribunal on 2 June 2020 (CB 119-121).
On 4 June 2020, the Tribunal affirmed the delegate’s…

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 3134
Decision Date: 19 November 2020

CaseChat Overview and Summary

The applicant, Mr Awan, sought judicial review of a decision made by the Administrative Appeals Tribunal concerning his application for a graduate visa. The dispute arose from the applicant's failure to sit an English Language Test prior to lodging his visa application, and his assertion that he received incorrect advice from a Departmental representative regarding this requirement.

The central legal issue before the Court was whether the Administrative Appeals Tribunal's decision involved a jurisdictional error. This required the Court to consider the nature of the advice provided to the applicant and its impact, if any, on the validity of the Tribunal's decision-making process.

Judge Kendall found that no jurisdictional error had occurred. The Court reasoned that even if incorrect advice was given, this did not vitiate the Tribunal's subsequent decision. The applicant's failure to meet a prerequisite for the visa, irrespective of the alleged misinformation, meant that the Tribunal's decision to affirm the refusal of the visa was not affected by jurisdictional error. Consequently, the application for judicial review was dismissed.

Orders

Orders of the court

ORDERS

1. The application be dismissed.

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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