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Fareed v Minister for Immigration

Fareed v Minister for Immigration

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Case Copied 20 May 2016 32 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FAREED v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1179

Catchwords:
MIGRATION – Judicial review – temporary student visa – whether Tribunal’s refusal to adjourn denied procedural fairness – whether Tribunal’s refusal to adjourn was unreasonable – whether jurisdictional error.

PRACTICE AND PROCEDURE – Extension of time application – consideration of factors – relevance of application for ministerial intervention.

Legislation:

Constitution, s.64

Federal Circuit Court Rules (Cth), r.1.06, 44.05

Migration Act 1958 (Cth), ss.351, 474, 476, 477

Migration Regulations 1994 (Cth)
Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2

Ali v Minister for Immigration & Anor [2015] FCCA 369
Borra v Minister for Immigration & Anor [2013] FCCA 1216
BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83
BZAER v Minister for Immigration & Anor [2014] FCCA 813
BZAFV v Minister for Immigration & Anor [2014] FCCA 2808
Chen v Minister for Immigration & Anor [2014] FCCA 271
Gill v Minister for Immigration & Border Protection & Anor [2014] FCCA 1929

M211 of 2003 v Refugee Review Tribunal & Anor [2004] FCAFC 293; (2004) 212 ALR 520; (2004) 82 ALD 24
Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50
Minister for Immigration & Citizenship v Le & Ors [2007] FCA 1318; (2007) 164 FCR 151; (2007) 242 ALR 455
Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB[2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12
Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583

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 1179
Decision Date: 20 May 2016

CaseChat Overview and Summary

In *Fareed v Minister for Immigration*, the applicant, Mr Fareed, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) to refuse his application for a temporary student visa. The core of the dispute concerned the AAT's refusal to grant Mr Fareed an adjournment of his hearing, which he contended resulted in a denial of procedural fairness and constituted jurisdictional error.

The primary legal issues before the Federal Circuit Court were whether the AAT's refusal to grant an adjournment was procedurally unfair to Mr Fareed, and whether this refusal was so unreasonable that it amounted to jurisdictional error. The court also considered an application for an extension of time to file the application for judicial review, and the relevance of an application for ministerial intervention in that context.

Judge Lucev found that the AAT's refusal to grant an adjournment was not unreasonable and did not constitute a denial of procedural fairness. His Honour reasoned that Mr Fareed had not provided sufficient grounds to warrant an adjournment, particularly in light of the Tribunal's obligations to manage its own caseload efficiently. The court noted that while an applicant is entitled to procedural fairness, this does not extend to an unfettered right to an adjournment, and the Tribunal is entitled to weigh the applicant's request against the need for timely resolution of matters. The application for an extension of time was granted, but the substantive application for judicial review was dismissed.

Orders