Cho v Minister for Home Affairs - [2019] FCCA 3158

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHO v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 3158

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Student visa application – application seeking judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant Student (Temporary) (Class TU) (Subclass 500) visa to the applicant – Administrative Appeals Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay temporarily as a student – no jurisdictional error identified by the applicant – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:

Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352

CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682

Applicant:

SEUNGCHAN CHO

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1629 of 2018

Judgment of:

Judge Dowdy

Hearing date:

23 October 2019

Delivered at:

Sydney

Delivered on:

23 October 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent:

Ms A. Zinn

Solicitors for the First Respondent:

Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 12 June 2018 is dismissed.
The Applicant is ordered to pay the First Respondent's costs of the proceeding in the sum of $5,400.
The name of the First Respondent be amended from ‘Minister for Home Affairs’ to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 2 December 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1629 of 2018

SEUNGCHAN CHO

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

The Applicant is a male citizen of South Korea aged 41 years, having been born on 2 May 1978.
By Application filed in this Court on 12 June 2018 he seeks to quash and have re-determined according to law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 10 May 2018 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Home Affairs (Minister), dated 8 March 2017 refusing to grant to him a Student (Temporary) (Class TU) (Subclass 500) visa (Student visa).

Background

The Applicant arrived in Australia on 18 June 2016 holding an Electronic Travel Authority (Class UD) (Subclass 601) visa which ceased on 18 September 2016, stating in the application that he wished to visit Australia for no longer than three months. On 11 September 2016 he applied for the Student visa and in support lodged a Written Statement dated 5 September 2016 (First Statement). In the First Statement the Applicant explained his reasons for applying for the Student visa in Australia as…

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: [2019] FCCA 3158
Decision Date: 23 October 2019

CaseChat Overview and Summary

The applicant, Mr. Cho, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the Minister for Home Affairs' refusal to grant him a Student (Temporary) (Class TU) (Subclass 500) visa. The AAT had not been satisfied that Mr. Cho was a genuine applicant for entry and stay temporarily as a student.

The central legal issue before the court was whether the AAT had committed any jurisdictional error in its decision-making process. The applicant contended that such an error had occurred, leading to the Tribunal's adverse finding regarding his genuineness as a student.

Dowdy J found no jurisdictional error on the part of the AAT. The court's reasoning focused on whether the AAT had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the associated regulations. The judge concluded that the AAT had considered the evidence before it and applied the correct legal tests in determining that the applicant did not satisfy the criteria for a genuine student visa applicant.

Consequently, the application for judicial review was dismissed.

Orders