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Ferdous v Minister for Home Affairs

Ferdous v Minister for Home Affairs

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Case Copied 28 August 2019 39 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FERDOUS v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 1862

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – cancellation of a higher education sector visa – criminal charge of assault – charge not yet heard – evidence relating to the charge disputed – Tribunal finding that the applicant posed a risk to his former girlfriend – Tribunal finding that the criminal charges outweighed personal factors – whether the Tribunal failed to apply a proper test in the exercise of discretion and whether the Tribunal decision was legally unreasonable considered – jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.116, 359A, 363, 370, 371, 378, 501, 501CA

Cases cited:

Tuala v Minister for Home Affairs [2019] FCA 345

X7 v Australian Crime Commission (2013) 248 CLR 92

Applicant:

FERIAL FERDOUS

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2189 of 2018

Judgment of:

Judge Driver

Hearing date:

4 June 2019

Delivered at:

Sydney

Delivered on:

28 August 2019

REPRESENTATION

Counsel for the Applicant:

Mr D Godwin

Solicitors for the Applicant:

Parish Patience Immigration Lawyers

Counsel for the Respondents:

Mr D Delaney

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 4 July 2018 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Administrative Appeals Tribunal to redetermine the review application before it according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2189 of 2018

FERIAL FERDOUS

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant, Mr Ferdous, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 4 July 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) to cancel…

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: [2019] FCCA 1862
Decision Date: 28 August 2019

CaseChat Overview and Summary

Ferdous (the applicant) sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) to affirm the cancellation of his higher education sector visa. The cancellation was based on the applicant being charged with assault, a charge that had not yet been heard by a criminal court. The applicant disputed the evidence relating to the charge, but the Tribunal found that he posed a risk to his former girlfriend and that the criminal charges outweighed his personal circumstances.

The central legal issues before the court were whether the Tribunal failed to apply a proper test in the exercise of its discretion when considering the visa cancellation, and whether the Tribunal's decision was legally unreasonable. The applicant contended that the Tribunal's findings and the subsequent decision constituted jurisdictional error.

Judge Driver found that the Tribunal had made a jurisdictional error. The reasoning was that the Tribunal had based its decision on the *existence* of criminal charges, rather than on a finding that the applicant had actually committed the offence. The court held that it was not open to the Tribunal to make findings of fact about the applicant's alleged criminal conduct when those matters had not been determined by a criminal court. This approach meant the Tribunal had failed to apply the correct legal test in its exercise of discretion.

The court concluded that the Tribunal's decision was legally unreasonable and quashed the Tribunal's decision. The matter was remitted to the Tribunal for redetermination according to law.

Orders