Bjeshka v Minister for Immigration - [2020] FCCA 1209

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJESHKA v MINISTER FOR IMMIGRATION

[2020] FCCA 1209

Catchwords:
MIGRATION – Application by fourteen (14) year old Albanian boy for a Student visa – non-compliance with cl. 500.212 criteria – no jurisdictional error established on the part of the delegate – application dismissed.

Legislation:

Migration Act 1958 (Cth), s. 338, 499.

Migration Regulations 1994 (Cth), Schedule 2, cl. 500.212.

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593.

Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16.

Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015]

HCA 50.

AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261

FCR 503.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Applicant:

ARMANDO BJESHKA

Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number:

ADG 115 of 2020

Judgment of:

Judge Egan

Hearing date:

15 May 2020

Date of Last Submission:

15 May 2020

Delivered at:

Brisbane

Delivered on:

19 May 2020

REPRESENTATION

Solicitors for the Applicant:

Mr M. Simmons, Solicitor of MSM Legal

Solicitors for the Respondent:

Mr S. Cummings, Solicitor of Sparke Helmore

ORDERS

Pursuant to Division 11.2 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’), the Applicant’s paternal uncle Arjan Bjeshka of 28 Swift Avenue, Dulwich in the State of South Australia is appointed as the litigation guardian of the Applicant.
Pursuant to rule 1.06 of the Rules, the requirement in rule 11.09(1) that the Applicant may only start an application by his litigation guardian is, nunc pro tunc, dispensed with.
Pursuant to rule 1.06 of the Rules, rule 11.13 providing for the notice to the First Respondent of the appointment of the litigation guardian for the Applicant is dispensed with.
The application for review filed on 12 March 2020 be dismissed.
The Applicant’s litigation guardian pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,000.00.

IT IS NOTED THAT:

A.Arjan Bjeshka has filed an affidavit of consent to be appointed litigation guardian and does not have any known interest in these proceedings that is adverse to the Applicant.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

ADG 115 of 2020

ARMANDO BJESHKA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a fourteen (14) year old citizen of Albania. He resides with his parents and two younger brothers.
On 23 January 2020, the applicant applied for a Class TU Subclass 500 Student visa. Three previous applications made by the applicant for such visa had been refused by the Department. The applicant had received notifications of refusal from the Department dated 23 November 2018, 5 December 2018 and 25 January 2019 respectively. [1]
[1] Annexures CF-1, CF-2 and CF-3 to the Affidavit of Catherine Follett filed on 8 May 2020.
As to…

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 1209
Decision Date: 19 May 2020

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse a Student visa to a fourteen-year-old Albanian boy. The applicant sought judicial review of the delegate's decision.

The primary legal issue before the Federal Circuit Court was whether the delegate had made a jurisdictional error in refusing the visa application. This involved determining whether the applicant had met the criteria stipulated in clause 500.212 of the Migration Regulations 1994.

The Court found that no jurisdictional error had been established on the part of the delegate. The applicant had failed to satisfy the requirements of clause 500.212, and therefore, the delegate's decision to refuse the visa was not vitiated by error.

Consequently, the application for review was dismissed. The applicant's paternal uncle was appointed as the litigation guardian, and the guardian was ordered to pay the First Respondent's costs of the application in the amount of $5,000.00.

Orders

Orders of the court

Pursuant to Division 11.2 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’), the Applicant’s paternal uncle Arjan Bjeshka of 28 Swift Avenue, Dulwich in the State of South Australia is appointed as the litigation guardian of the Applicant.

Pursuant to rule 1.06 of the Rules, the requirement in rule 11.09(1) that the Applicant may only start an application by his litigation guardian is, nunc pro tunc, dispensed with.

Pursuant to rule 1.06 of the Rules, rule 11.13 providing for the notice to the First Respondent of the appointment of the litigation guardian for the Applicant is dispensed with.

The application for review filed on 12 March 2020 be dismissed.

The Applicant’s litigation guardian pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,000.00.

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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