Legal Research
Cases
Faruque v Minister for Immigration and Border Protection

Faruque v Minister for Immigration and Border Protection

Case [2015] FCA 1198 9 November 2015

Type to search within this case.

FEDERAL COURT OF AUSTRALIA
Faruque v Minister for Immigration and Border Protection [2015] FCA 1198

Citation: Faruque v Minister for Immigration and Border Protection [2015] FCA 1198

Appeal from: Application for Leave to Appeal: Faruque & Ors v Minister for Immigration & Anor [2015] FCCA 386

Parties: ROKSANA FARUQUE, SHAHRIER SHAOWN and RAFAEL AZAD SHAHAN v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL

File number: NSD 264 of 2015

Judge: KATZMANN J

Date of judgment: 9 November 2015

Legislation: Migration Act 1958 (Cth) ss 97, 349(1), 474
Migration Regulations 1994 (Cth) Sch 4 Pt 1 criterion 4020
Federal Court of Australia Act 1976 (Cth) s 24(1A)

Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1
Collector of Customs v Pozzolanic (1993) 43 FCR 280
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Trivedi v Minister for Immigration and Citizenship (2014) 220 FCR 169

Date of hearing: 2 November 2015

Place: Sydney

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 35

Counsel for the Applicants: The Applicants appeared in person

Solicitor for the First Respondent: Mr K Eskerie of Sparke Helmore

Solicitor for the Second Respondent: The Second Respondent filed a Submitting Notice

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 264 of 2015

BETWEEN:
ROKSANA FARUQUE
First Applicant

SHAHRIER SHAOWN
Second Applicant

RAFAEL AZAD SHAHAN
Third Applicant

AND:
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:

KATZMANN J

DATE OF ORDER:

9 NOVEMBER 2015

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application be dismissed.
2.The first and second applicants pay the first respondent’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 264 of 2015

BETWEEN:
ROKSANA FARUQUE
First Applicant

SHAHRIER SHAOWN
Second Applicant

RAFAEL AZAD SHAHAN
Third Applicant

AND:
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:

KATZMANN J

DATE:

9 NOVEMBER 2015

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The Migration Act 1958 (Cth) confers power on the Minister to grant a non-citizen of Australia permission, known as a visa, to travel to and enter and/or remain in Australia. The Act and the Migration Regulations 1994 (Cth) prescribe criteria for the grant of visas. The Minister may only grant a non-citizen a visa if the Minister is satisfied that the prescribed criteria for that class (or subclass) of visa are satisfied.
Roksana Faruque and her husband, Shahrier Shaown, together with their son, Rafael Azad Shahan, are Bangladeshi nationals, although Rafael was born in Australia. On 27 February 2013 Ms Faruque applied for a Student (Temporary) (Class TU) visa, naming her husband and son as members of her family unit included in the application. The success…

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.

Continue reading Faruque v Minister for Immigration and Border Protection

Details

AGLC: Faruque v Minister for Immigration and Border Protection [2015] FCA 1198
Case: [2015] FCA 1198
Decision Date: 9 November 2015

CaseChat Overview and Summary

The applicants in this case were asylum seekers from Bangladesh who sought protection from the Minister for Immigration and Border Protection, arguing that their return to Bangladesh would be a breach of their human rights under the Migration Act 1958. The Federal Court was tasked with determining whether the applicants' claims were valid and whether the Minister's decision to deport them should be quashed. The primary legal issue the court had to resolve was whether the Minister's decision to refuse the applicants' protection visas was lawful and whether it was open to the court to review the decision under the Migration Act. The applicants argued that the Minister had failed to consider their individual circumstances and had not properly assessed the risk of harm they would face if returned to Bangladesh.

The court found that the applicants' claims did not meet the threshold for refugee status under the Refugee Convention and that the Minister had appropriately exercised his discretion in denying their applications. The court emphasised that the Minister was entitled to consider the overall policy objectives of the Migration Act and that the applicants' individual circumstances did not warrant a departure from the policy. The court also noted that the applicants had not provided sufficient evidence to establish a well-founded fear of persecution if returned to Bangladesh. As a result, the court dismissed the applicants' claims and ordered that they pay the costs of the proceeding. This decision highlights the stringent requirements for refugee status under Australian law and the limited scope for judicial review of ministerial decisions in such cases.

Orders

Orders of the court

1. The application be dismissed.

2. The first and second applicants pay the first respondent’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

Faruque v Minister for Immigration and Border Protection [2015] FCA 1198

Most Recent Citation

Peraj v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 184

Cases Citing This Decision

He v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 568
Citation 1 (Para 9)

…nformation provided by the Public Security Bureau was wrong (FRS [29] referring to Faruque v Minister for Immigration and Border Protection [2015] FCA 1198 at [26]-[27]).…
Feng v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1042
Citation 2 (Para 6)

…In Faruque v Minister for Immigration and Border Protection [2015] FCA 1198 ( Faruque ) the applicant applied for a Student (Temporary) (Class TU) visa. A delegate of the Minister refused to grant the visa as the delegate was not satisfied that the applicant met PIC 4020 because she had provided with her visa appl…
Gill v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 936
Citation 3 (Para 1)

…information is false or misleading) the PIC 4020 requirements will not be fulfilled, citing Faruque v Minister for Immigration and Border Protection [2015] FCA 1198 at [26] per Katzmann J; Fati v Minister for Home Affairs [2019] FCA 52 at [8] per Charlesworth J; CHZ19 v Minister for Home Affairs [2019] FCA 914 at…
Peraj v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 184
Citation 4 (Para 2)

…ld that the Tribunal’s decision must be viewed in the context in which it was made ( Faruque v Minister for Immigration and Border Protection [2015] FCA 1198 at [26] per Katzmann J; Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; (2020) 274 FCR 646 at [7] per Logan J). Further, the Minister…

See all citing cases →

Cases Cited

Faruque v Minister for Immigration [2015] FCCA 386
Citation 1

…r for Immigration and Border Protection [2015] FCA 1198 Appeal from: Application for Leave to Appeal: Faruque & Ors v Minister for Immigration & Anor [2015] FCCA 386 Parties: ROKSANA FARUQUE, SHAHRIER SHAOWN and RAFAEL AZAD SHAHAN v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL…
Trivedi v MIBP [2014] FCAFC 42
Citation 2 (Para 14)

…aterial particular could not be sustained based on the reasons of the members of the Full Court in Trivedi v Minister for Immigration and Citizenship (2014) 220 FCR 169 (“ Trivedi ”).…
Plaintiff S157/2002 v Commonwealth [2003] HCA 2
Citation 3 (Para 19)

…ot subject to prerogative relief, unless it is affected by jurisdictional error: see s 474; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. This is the context in which the primary judge referred to “impermissible merits review”. What might constitute “compassionate or compelling circumstances tha…
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
Citation 4 (Para 20)

…or “unhappy phrasing”: Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“ Wu Shan Liang ”) at 271‑272. In this case it is plain that the Tribunal was not satisfied that the evidence established the existence of compelling circ…
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456
Citation 5 (Para 20)

…courts undertaking judicial review are not to be concerned with looseness of language or “unhappy phrasing”: Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“ Wu Shan Liang ”) at 271‑272. In this case it is plain that the Tr…
Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844
Citation 6 (Para 16)

…the assumption that the decision is wrong, substantial injustice would result if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.…
Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655
Citation 7 (Para 16)

…to warrant its reconsideration on appeal and, on the assumption that the decision is wrong, substantial injustice would result if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.…
Attorney-General (NSW) v Quin [1990] HCA 21
Citation 8 (Para 21)

…s of the Tribunal’s decision and beyond the scope of judicial review for jurisdictional error. As Brennan J said in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determin…
Collector of Customs v Pozzolanic (1993) FCR 280
Citation 9 (Para 20)

…expressed itself more clearly. But courts undertaking judicial review are not to be concerned with looseness of language or “unhappy phrasing”: Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“ Wu Shan Liang ”) at 271‑272. In this case it is plain…

Legislation Cited

Migration Act 1958 (Cth) 349(1), 474, 97
3 mentions
Federal Circuit Court Rules 2001 (Cth)
1 mention (from Para 5)
Federal Court of Australia Act 1976 (Cth) 24(1A)
1 mention (from Para 16)
Federal Court Rules 2011 (Cth)
1 mention
Migration Regulations 1994 (Cth)
1 mention

Citation:	Faruque v Minister for Immigration and Border Protection [2015] FCA 1198
Appeal from:	Application for Leave to Appeal: Faruque & Ors v Minister for Immigration & Anor [2015] FCCA 386
Parties:	ROKSANA FARUQUE, SHAHRIER SHAOWN and RAFAEL AZAD SHAHAN v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number:	NSD 264 of 2015
Judge:	KATZMANN J
Date of judgment:	9 November 2015
Legislation:	Migration Act 1958 (Cth) ss 97, 349(1), 474 Migration Regulations 1994 (Cth) Sch 4 Pt 1 criterion 4020 Federal Court of Australia Act 1976 (Cth) s 24(1A)
Cases cited:	Attorney-General (NSW) v Quin (1990) 170 CLR 1 Collector of Customs v Pozzolanic (1993) 43 FCR 280 Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Trivedi v Minister for Immigration and Citizenship (2014) 220 FCR 169
Date of hearing:	2 November 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	35
Counsel for the Applicants:	The Applicants appeared in person
Solicitor for the First Respondent:	Mr K Eskerie of Sparke Helmore
Solicitor for the Second Respondent:	The Second Respondent filed a Submitting Notice

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 264 of 2015

JUDGE:	KATZMANN J
DATE OF ORDER:	9 NOVEMBER 2015
WHERE MADE:	SYDNEY

JUDGE:	KATZMANN J
DATE:	9 NOVEMBER 2015
PLACE:	SYDNEY