Dhungana v Minister for Immigration - [2017] FCCA 678

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHUNGANA v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 678

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – cancellation of higher education sector visa – period of non-enrolment – whether the Tribunal exercised its power improperly or unreasonably, or whether the Tribunal’s process was unfair, or whether the Tribunal took into account irrelevant considerations or failed to take into account a relevant consideration – whether the education provider failed to perform its obligations so as to vitiate the visa cancellation considered – no jurisdictional error.

Legislation:

Education Services for Overseas Students Act 2000 (Cth), s.19

Migration Act 1958 (Cth), ss.41, 116, 359A, 360

Migration Regulations 1994 (Cth)

Cases cited:
Liu v Minister for Immigration [2003] FCA 1170
Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18

Applicant:

SARAYU DHUNGANA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1987 of 2016

Judgment of:

Judge Driver

Hearing date:

28 March 2017

Date of Last Submission:

26 April 2017

Delivered at:

Sydney

Delivered on:

25 May 2017

REPRESENTATION

Solicitors for the Applicant:

Mr M Nair of M S Nair & Co

Solicitors for the Respondents:

Mr T Galvin of Minter Ellison

ORDERS

The application as amended on 2 December 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1987 of 2016

SARAYU DHUNGANA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant, Ms Dhungana, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 30 June 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) to cancel Ms Dhungana’s higher education sector visa. The following statement of background facts is derived from the submissions of the Minister filed on 21 March 2017.
Ms Dhungana was granted a student visa on 18 February 2013[1].
[1] Court Book (CB) 16
On 18 September 2015, the Minister's Department sent Ms Dhungana, by email, a Notice of Intention to Consider Cancellation (NOICC) in respect of her student visa on the basis that she appeared not to meet condition 8202(2)(a)[2]. That condition required the visa holder to be enrolled in a registered course. The NOICC stated that evidence obtained from the Provider Registration and International Student Management System (PRISMS) indicated that Ms Dhungana had not been enrolled in a registered course of study for the period of 19 August 2014 to 24 August 2015. The NOICC invited Ms Dhungana to provide a response within five days of being taken to have received the letter. That response time was subsequently extended to 14 October 2016[3].
[2] CB 13–20
[3] CB 26
Ms Dhungana’s agent responded to the NOICC in writing on 14 October 2015 by providing a written statement made by Ms Dhungana and a number of supporting documents[4]. In her statement, Ms Dhungana explained her study history, and stated that she was experiencing family issues…

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: [2017] FCCA 678
Decision Date: 25 May 2017

CaseChat Overview and Summary

In *Dhungana v Minister for Immigration*, the applicant, Mr. Dhungana, sought judicial review of the Minister for Immigration's decision to refuse his application for a Protection visa. The dispute centred on whether the Minister had adequately considered the applicant's claims of persecution in Nepal, specifically concerning his alleged involvement with a political party and the potential consequences of his return. The matter came before Judge Driver in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's delegate had failed to properly consider and assess the applicant's claims regarding his fear of persecution, as required by the *Migration Act 1958* (Cth) and relevant international obligations. This involved determining whether the delegate had taken into account all relevant information, including the applicant's personal circumstances and the country information pertaining to Nepal, and whether the assessment of the risk of harm was reasonable and evidenced.

Judge Driver reasoned that the delegate's decision-making process had been flawed. The Court found that the delegate had not adequately engaged with the specific details of Mr. Dhungana's fear of persecution, particularly in relation to the alleged threats and the potential for detention and ill-treatment upon return to Nepal. The delegate's assessment was found to have relied too heavily on general country information without sufficiently addressing the individualised risk faced by the applicant. The Court reiterated the principle that a delegate must conduct a thorough and individualised assessment of an applicant's claims, giving due weight to all credible evidence presented.

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

Orders