CHITRAKAR v Minister for Immigration - [2016] FCCA 3224

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHITRAKAR v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3224

Catchwords:
MIGRATION – Application for student visa – review of decision of Administrative Appeals Tribunal – validity of application – whether visa application is only valid upon payment of visa application charge – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 31, 77, 82

Migration Regulations 1994 (Cth), cls.572.21, 572.22, 572.211, 572.221, pt.572 of sch.2
Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 (Cth), item 32 of sch.4

Cases cited:

Berenguel v Minister for Immigration & Citizenship (2010) 84 ALJR 251; [2010] HCA 8

Applicant:

SUMITA CHITRAKAR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2772 of 2015

Judgment of:

Judge Smith

Hearing date:

1 September 2016

Date of Last Submission:

15 September 2016

Delivered at:

Sydney

Delivered on:

16 December 2016

REPRESENTATION

The applicant appeared in person.

Counsel for the First Respondent:

Mr J Kay Hoyle

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2772 of 2015

SUMITA CHITRAKAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant was the holder of a subclass 485 (Temporary Graduate) visa (“Graduate visa”) which expired on 20 March 2015. At that time she was enrolled as a student in a number of courses. On 19 March 2015, the applicant lodged an application for a student visa in order to be able to remain in Australia to complete those courses.
It was a criterion for the grant of the student visa that, at the time the application was made, the applicant was the holder, relevantly, of a subclass 485 visa. As the applicant made the application the day before her visa expired, it appears at first glance that she satisfied this criterion. However, on 22 April 2015, a delegate of the Minister found that the application had not been made until 24 March 2015 and so the criterion was not satisfied.
On review of the delegate’s decision, the Administrative Appeals Tribunal proceeded on the basis that the relevant time was the day on which a valid application was made and found that that was on 24 March 2015. That…

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: [2016] FCCA 3224
Decision Date: 16 December 2016

CaseChat Overview and Summary

In *Chitrakar v Minister for Immigration*, the applicant, Mr. Chitrakar, sought judicial review of a decision by the Minister for Immigration to refuse his application for a Protection visa. The dispute centred on whether the Minister's decision was affected by an error of law.

The primary legal issue before the Court was whether the delegate of the Minister had failed to consider relevant considerations and had taken into account irrelevant considerations when assessing Mr. Chitrakar's claims for protection. Specifically, the Court was asked to determine if the delegate had adequately considered the evidence of past persecution and the risk of future persecution in the applicant's country of origin, and whether the delegate had improperly relied on information that was not before the Minister at the time of the decision.

Judge Smith reasoned that the delegate's assessment of the risk of future persecution was flawed. The delegate had failed to properly engage with the detailed evidence provided by Mr. Chitrakar regarding the specific nature of the threats he faced and the reasons why he could not be expected to relocate within his country of origin. The Court found that the delegate had impermissibly substituted their own assessment of the general situation in the country for a proper consideration of the individual circumstances of the applicant, thereby failing to take into account relevant considerations and taking into account irrelevant considerations.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders