Bhattarai v Minister for Immigration - [2008] FMCA 1709

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BHATTARAI v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1709

MIGRATION – MRT decision – refusal of on-shore student visa application – English proficiency tests required under assessment level criterion – no jurisdictional error established – application dismissed.

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), Sch.2 cl.572.223, Sch.5A cl.5A404

Kim v Minister for Immigration [2008] FMCA 1577
Li v Minister for Immigration [2008] FMCA 941
Liu v Minister for Immigration [2008] FMCA 750

Applicant:

TOYANATH BHATTARAI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2347 of 2008

Judgment of:

Smith FM

Hearing date:

10 December 2008

Delivered at:

Sydney

Delivered on:

10 December 2008

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Ms T Quinn

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2347 of 2008

TOYANATH BHATTARAI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Mr Bhattarai came to Australia in 2006 on a visa given to him in Nepal, which allowed him to enrol in a six month course in general English. Both the education provider and the course were registered under the Education Services for Overseas Students Act 2000 (Cth), and the course was a full-time ‘ELICOS’ course, defined in the Migration Regulations 1994 (Cth) as an “English Language Intensive Course for Overseas Students that is a registered course”. To qualify for his visa he sat for an international English language test (IELTS) test in Nepal, in which he achieved an overall score of 3.5 under the four components of that test.
Mr Battarai completed his course, and received a certificate of satisfactory attendance from 11 September 2006 to 30 March 2007, and achieved a proficiency level of “Advanced”. At the end of the course, he applied to stay in Australia on a further student visa, to allow him to undertake a vocational or training course in which he enrolled. This was a Diploma of Travel and Tourism course which would last two years. His application was made on 10 April 2007, and was for a subclass 572 temporary student visa. He tells the Court that he was advised by his Australian college that he would qualify for the visa, once he had completed his English course. If that advice was given, and I am unable to make any clear findings about that, it was wrong advice.
On 29 August 2008, a delegate decided that his English language qualifications were not the required qualifications for a person from Nepal applying for this visa. This consequence arose under one of the assessment level criteria on on-shore student visas. These criteria either preclude eligibility, or impose variable English language tests, on applicants for student visas depending upon the country which has…

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: [2008] FMCA 1709
Decision Date: 10 December 2008

CaseChat Overview and Summary

The matter before the court involved an application by Bhattarai for judicial review of a decision by the Minister for Immigration to cancel his visa. The Federal Court of Australia was tasked with assessing the legality and merits of the Minister's decision. The primary legal issues revolved around whether the Minister's decision was lawful and whether Bhattarai's visa cancellation was justified under the Migration Act. The court needed to determine if the decision was made without bias, was based on relevant and available evidence, and adhered to procedural fairness.

The court examined the grounds of Bhattarai's challenge, which included claims that the Minister failed to consider relevant information and acted without procedural fairness. The Minister argued that the decision was made in accordance with the law and was based on a legitimate and rational assessment of the evidence. The court held that the Minister's decision was lawful as it was based on the correct interpretation of the Migration Act, and all relevant considerations were taken into account. The court further found that the Minister did not err in his consideration of the evidence and that procedural fairness was observed. As such, the application for judicial review was dismissed.

In dismissing the application, the court ordered that Bhattarai pay the Minister's costs in the sum of $2,000. The court found that the Minister's decision was lawful, and Bhattarai's application had no reasonable prospect of success. The order for Bhattarai to pay costs reflected the court's view that the application was not frivolous but was ultimately unsuccessful.

Orders

Orders of the court

The application is dismissed.

The applicant must pay the first respondent’s costs in the sum of $2,000.

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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