Gunawan v Minister for Immigration - [2019] FCCA 2445

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUNAWAN v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2445

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Student visa cancellation – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a Delegate of the Minister for Immigration to cancel a Student visa under s.116(1)(fa) of the Migration Act 1958 (Cth) as the applicant was not a genuine student – applicant had not studied for a period of over 19 months and was not enrolled in a full-time registered course of study for a period of 12 months – no jurisdictional error identified by the applicant – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 357A, 359, 422B, 424

Applicant:

I KADEK EKO JULIYADI GUNAWAN

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3463 of 2018

Judgment of:

Judge Dowdy

Hearing date:

16 August 2019

Delivered at:

Sydney

Delivered on:

16 August 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent:

Mr D. Baddeley

Solicitors for the First Respondent:

Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 11 December 2018 is dismissed.
The Applicant is to pay the First Respondent’s cost of the proceeding in the sum of $5,400.
The name of the First Respondent be amended from ‘Minister for Home Affairs’ to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 27 September 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3463 of 2018

I KADEK EKO JULIYADI GUNAWAN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

The Applicant is a male citizen of Indonesia aged 30 years, having been born on 30 July 1989.
By Application filed in this Court on 11 December 2018 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 16 November 2018 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 21 November 2016 cancelling his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa (Student visa) under s.116 of the Migration Act 1958 (Cth) (the Act).

Background

The Applicant was granted the Student visa on 4 March 2014 with a planned study process leading to a Bachelor of Business Degree over a course extending from 28 July 2014 to 21 July 2017 with Australian Institute of Higher Education Pty Ltd.
By Notice of Intention to Consider Cancellation of the Student visa dated 2 November 2016…

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 2445
Decision Date: 16 August 2019

CaseChat Overview and Summary

This matter concerned an application for judicial review brought by Mr Gunawan against the Minister for Immigration. The dispute arose from the Administrative Appeals Tribunal's decision to affirm the Delegate of the Minister's cancellation of Mr Gunawan's student visa under section 116(1)(fa) of the *Migration Act 1958* (Cth). The basis for the cancellation was that Mr Gunawan was not considered a genuine student, evidenced by his failure to study for over 19 months and his lack of enrolment in a full-time registered course of study for a period of 12 months. The application was heard by Dowdy J.

The primary legal issue before the Court was whether the Administrative Appeals Tribunal had committed any jurisdictional error in affirming the delegate's decision to cancel Mr Gunawan's student visa. Mr Gunawan contended that such an error had occurred, forming the basis of his application for judicial review.

Dowdy J found no jurisdictional error on the part of the Administrative Appeals Tribunal. The Court's reasoning focused on the evidence before the Tribunal and its assessment of whether Mr Gunawan met the criteria for being a genuine student under the relevant provisions of the *Migration Act 1958* (Cth). Having determined that the Tribunal's decision was not vitiated by jurisdictional error, the application for judicial review was dismissed.

Orders