Fati v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Fati v Minister for Home Affairs [2019] FCA 52

Appeal from: Fati v Minister for Immigration & Anor [2018] FCCA 100
File number: SAD 32 of 2018
Judge: CHARLESWORTH J
Date of judgment: 29 January 2019
Catchwords: MIGRATION – visa applicant found not to have fulfilled public interest criterion 4020 – two independent bases for criterion not being fulfilled – no error affecting one basis for decision – Tribunal bound to affirm decision to refuse visa – any error affecting alternative path of reasoning could not affect outcome – no jurisdictional error
Legislation:

Migration Act 1958 (Cth) ss 65, 97, 349, 474

Migration Regulations 1994 (Cth) cll 572.223, 572.224 Sch 2

Cases cited:

Arora v Minister for Immigration and Border Protection (2016) 238 FCR 153

Fati v Minister for Immigration & Anor [2018] FCCA 100

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Plaintiff S297/2013 v Minister for Immigration and Border Protection & Anor [2014] HCA 24

Trevedi v Minister for Immigration and Border Protection (2014) 220 FCR 169

Date of hearing: 20 July 2018
Date of last submissions: Appellant:  1 August 2018
Respondent:  14 November 2018
Registry: South Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 41
Counsel for the Appellant: Ms E Bergin
Solicitor for the Appellant: Work Visa Lawyers
Counsel for the First Respondent: Ms H Stanley
Solicitor for the First Respondent: Sparke Helmore
Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice

ORDERS

SAD 32 of 2018
BETWEEN:

NIKOLIN FATI

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

CHARLESWORTH J

DATE OF ORDER:

29 JANUARY 2019

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the first respondent’s costs of the appeal.

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


REASONS FOR JUDGMENT

CHARLESWORTH J:

  1. The appellant, Mr Nikolin Fati, is a dual citizen of Albania and Italy.  He arrived in Australia in 2013 on a visitor’s visa and was subsequently granted a student visa under the Migration Act 1958 (Cth).

  2. Mr Fati applied for a further student visa on 29 January 2015.  A delegate of the Minister for Home Affairs refused to grant the application on the basis that Mr Fati did not satisfy an essential criterion for the visa.  The delegate’s decision was affirmed on review by the Administrative Appeals Tribunal.  The Federal Circuit Court of Australia dismissed Mr Fati’s application for judicial review of the Tribunal’s decision:  Fati v Minister for Immigration & Anor [2018] FCCA 100. This is an appeal from that judgment.

    VISA CRITERIA

  3. For Mr Fati to be eligible for the grant of the visa it was necessary that the Minister be satisfied that Mr Fati was “a genuine applicant for entry and stay in…

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Details
Case
[2019] FCA 52
Decision Date

CaseChat Overview and Summary

The matter before the Court was an appeal by Fati against a decision of the Administrative Appeals Tribunal (AAT) affirming a decision of the Minister for Home Affairs to refuse to grant him a Student visa subclass 572. The central issue was whether the AAT had erred in concluding that Fati had not satisfied the public interest criterion 4020. The criterion requires the Minister to be satisfied that the visa applicant has not provided, or caused to be provided, to a relevant authority a bogus document or information that is false or misleading in a material particular in relation to their application for the visa. The Court had to determine if there was any error in the AAT's reasoning that affected the outcome of the decision.

The Court found that the AAT's conclusion was based on two independent grounds: first, that there was evidence the email Fati provided was false or misleading in a material particular, and second, that there was no evidence he had provided a counterfeit document. Fati argued that the AAT had conflated the tests for these two grounds, but the Court rejected this, holding that the AAT's conclusion was open on the facts as found and that any error in applying one ground could not affect the outcome as the decision was based on two independent bases. The Court also noted that any error in the AAT's interpretation of "counterfeit" did not constitute a jurisdictional error because the AAT's jurisdiction was correctly exercised in affirming the Minister's decision.

ORDERS:
1. The appeal is dismissed.
2. The appellant is to pay the first respondent's costs of the appeal.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant is to pay the first respondent’s costs of the appeal.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

That is reinforced by the Tribunal’s conclusion at [36], to the effect that it was “not satisfied that there is no evidence that the applicant has given, or caused to be given, to the Minister, or an officer of the Department, the tribunal or a relevant assessing authority a bogus document or information that is false or misleading in a material particular in relation to his application for a Student visa subclass 572”. The word “or” naturally indicates that the Tribunal’s conclusion that Mr Fati did not satisfy PIC 4020 was founded on two independent bases.No error affecting alternate conclusion Mr Fati submitted that the Tribunal’s conclusion that the email was a document that was false or misleading was affected by error because the Tribunal had erroneously conflated the test to be applied on that limb with the test to be applied on the alternate limb. I reject that submission. The facts found by the Tribunal in relation to the email were relevant to the application of both limbs of the criterion. The conclusion that there was evidence that the email contained information that was false or misleading in a material particular was clearly open on the facts as found. Whilst the Tribunal’s reasoning focuses principally on the question of whether the email was a “counterfeit” document, that of itself does not indicate error in the application of the alternate limb. I consider Mr Fati has failed to establish that the Tribunal erred in concluding that there was evidence that the email was false or misleading.No jurisdictional error The jurisdiction exercised by the Tribunal was that conferred by s 65 of the Act. The operation of s 65 was discussed in Plaintiff S297/2013 v Minister for Immigration and Border Protection & Anor [2014] HCA 24 (at [34]):The decision to be made by the Minister in performance of the duty imposed by s 65 is binary: the Minister is to do one or other of two mutually exclusive legally operative acts — to grant the visa under s 65(1)(a), or to refuse to grant the visa under s 65(1)(b) — depending on the existence of one or other of two mutually exclusive states of affairs (or ‘jurisdictional facts’) — the Minister’s satisfaction of the matters set out in each of the sub-paragraphs of s 65(1)(a), or the Minister’s non-satisfaction of one or more of those matters. …(Footnote omitted) The Tribunal was obliged to form its own conclusion on the material before it as to Mr Fati’s eligibility for the visa: s 349(1) of the Act. In its application to Mr Fati, s 65 mandated that the delegate’s decision be affirmed if the Tribunal was not satisfied that he satisfied PIC 4020. For the purposes of what follows, let it be assumed (but not decided) that the Tribunal misconstrued the word “counterfeit” as it appears in the definition of the phrase “bogus document” for the purpose of applying PIC 4020 in Mr Fati’s case. It may also be assumed (but not decided) that the Tribunal erred because it was not open to it to conclude, on the material before it, that there was evidence that Mr Fati had provided a document that was (or reasonably suspected to be) counterfeit and, hence, bogus. In either case, the Tribunal would fail to proceed in accordance with correct legal principle in relation to that limb of PIC 4020.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.