DING v Minister for Home Affairs - [2018] FCCA 3782

FEDERAL CIRCUIT COURT OF AUSTRALIA

DING v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 3782

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary) (Class TU) (Subclass 500) visa – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal’s reasons lack an evident and intelligible justification – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 486E
Migration Regulations 1994 (Cth), cl.500.211

Applicant:

MINNIE DING

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2178 of 2018

Judgment of:

Judge Street

Hearing date:

18 December 2018

Date of Last Submission:

18 December 2018

Delivered at:

Sydney

Delivered on:

18 December 2018

REPRESENTATION

Solicitors for the Applicant:

Mr C Levingston
Christopher Levingston & Associates

Solicitors for the Respondents:

Ms S Sangha
Mills Oakley

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

DATE OF ORDER: 18 December 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG2178 o 2018

MINNIE DING

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 5 July 2018 affirming the decision of a delegate to refuse to grant the applicant a Student (Temporary) (class TU) (subclass 500) visa.
The applicant is a citizen of Malaysia. The applicant applied for the visa on 25 November 2016. On 8 February 2017, the delegate found the applicant failed to meet the criteria for the grant of the visa. The delegate was not satisfied the applicant was a genuine applicant for for entry and stay as a student and that she intends to stay in Australia temporarily.
The applicant applied for review on 27 February 2017. On 13 April 2018, the Tribunal wrote to the applicant seeking further information. The invitation to provide information expressly referred to the Ministerial Direction No. 69 in relation to assessing temporary entrant criteria. The letter also referred to written information requested in the attached questionnaire and requested that that be received by 27 April 2018. That questionnaire had in it question 9:
Do you have a current Confirmation of Enrolment or letter of offer in a course of study?
The questionnaire provided for a circling of either a yes or no. No answer was circled.
Following the sending of the letter of 13 April 2018, a letter was sent by email dated 26 April 2018 on behalf of the applicant requesting an extension of time to submit documents. On 30 April 2018, a response was sent by the Tribunal referring to the invitation dated 13 April 2018 and the request for an extension made on 26 April 2018. The letter identified having carefully considered the same. There was the grant of…

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: [2018] FCCA 3782
Decision Date: 18 December 2018

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision made by the Administrative Appeals Tribunal (AAT) in relation to a Student (Temporary) (Class TU) (Subclass 500) visa application. The applicant, Mr Ding, sought to challenge the AAT's decision, alleging a failure to afford him procedural fairness and that the Tribunal's reasons lacked an evident and intelligible justification.

The primary legal issues before the Federal Circuit and Family Court of Australia were whether the AAT had committed a jurisdictional error by failing to provide procedural fairness to the applicant, and whether the reasons provided by the Tribunal for its decision were so lacking in justification as to constitute such an error.

Justice Street found that the AAT had not made a jurisdictional error. The Court was satisfied that the Tribunal had afforded the applicant procedural fairness and that its reasons for refusing the visa application were sufficient and intelligible. The applicant's arguments that the Tribunal's reasoning was inadequate or that he was denied a fair hearing were not substantiated.

Consequently, the application for judicial review was dismissed.

Orders