Ghouri v Minister for Home Affairs - [2019] FCCA 1559

FEDERAL CIRCUIT COURT OF AUSTRALIA

GHOURI v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 1559

Catchwords:
MIGRATION – Skilled (Provisional) (Class VC) (Subclass 485) – Review of decision of Administrative Appeals Tribunal – English language criterion – where applicant has a learning disability – where Tribunal has no discretion – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), cl.485.212, sch.2

Cases cited:

Applicant:

YOUSUF IQBAL GHOURI

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 297 of 2018

Judgment of:

Judge Kendall

Hearing date:

6 June 2019

Date of Last Submission:

6 June 2019

Delivered at:

Perth

Delivered on:

7 June 2019

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the First Respondent:

Ms A Coole

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS (as made 6 June 2019)

The application be dismissed.
Formal written reasons for judgment be published by Chambers at a later date.
The applicant pay the first respondent’s costs fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 297 of 2018

YOUSUF IQBAL GHOURI

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

On 6 June 2019, this application for judicial review under the Migration Act 1958 (Cth) (the “Act”) was heard by this Court.
Having heard the parties, the Court ordered that:
1. The application be dismissed.
2. Formal written Reasons for Judgment be published by Chambers at a later date.
3. The applicant pay the first respondent’s costs fixed in the sum of $6,000.
What follows are the formal written Reasons for Judgment referred to in order 2 of the orders made by this Court on 6 June 2019.

Background

By application filed in this Court on 5 June 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 1 May 2018.
The Tribunal affirmed a decision of a delegate of the now Minister for Home Affairs (the “Minister”) to not grant the applicant a Skilled (Provisional) (Class VC) (Subclass 485) visa (the “visa”).
The applicant now seeks judicial review of the Tribunal’s decision. This…

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 1559
Decision Date: 7 June 2019

CaseChat Overview and Summary

The applicant, Mr Ghouri, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) concerning his application for a Skilled (Provisional) (Class VC) (Subclass 485) visa. The AAT had affirmed the delegate's refusal of the visa, which was based on the applicant's failure to meet the English language criterion.

The central legal issue before the Federal Court was whether the AAT had made a jurisdictional error in its review of the delegate's decision. Specifically, the court considered whether the AAT possessed any discretion to waive or overlook the English language requirement, even in circumstances where the applicant had a diagnosed learning disability.

Kendall J found that the Migration Act 1958 (Cth) and associated regulations prescribed specific criteria for the grant of the visa, including the English language proficiency requirement. The court determined that the AAT, in reviewing the delegate's decision, was bound by these legislative requirements and had no discretion to depart from them. The AAT's role was to assess whether the applicant met the prescribed criteria, not to exercise a general discretion to grant a visa in the absence of such compliance. Consequently, the AAT's conclusion that the applicant did not meet the English language criterion was a correct application of the law, and no jurisdictional error was identified.

The application for judicial review was dismissed.

Orders