Ferdous v Minister for Home Affairs

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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:

ARG15 v Minister for Immigration [2016] FCAFC 174; 250 FCR 109
BSJ16 v Minister for Immigration [2017] FCAFC 78; (2017) 252 FCR 82
Cassaniti v Tax Agents’ Board of New South Wales [2009] FCA 619
CKC16 v Minister for Immigration [2018] FCA 1260
DAO16 v Minister for Immigration (2018) 258 FCR 175
Folau v Minister for Immigration [2017] FCAFC 214; (2017) 256 FCR 455
Gong v Minister for Immigration & Anor [2016] FCCA 561
Hammond v Commonwealth of Australia [1982] HCA 42; (1982) 152 CLR 188
Maere v Minister for Home Affairs [2018] FCA 1694
Minister for Immigration v Peko-Wallsend (1986) 162 CLR 24
Moana v Minister for Immigration (2015) 230 FCR 367
R v Leach [2018] QCA 131
Re Lane and Conservator of Wildlife (1984) 5 ALN 429
Re Minister for Immigration; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Re Taxation Appeals (No.163) v Commissioner of Taxation [1987] AATA 202; (1987) 12 ALD 102
SZTFQ v Minister for Immigration [2017] FCA 562
Tanielu v Minister for Immigration (2014) 225 FCR 424

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

  1. 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.

  2. 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

  1. 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…

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Details
Case
[2019] FCCA 1862
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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