Halim v Minister for Home Affairs - [2019] FCCA 2290

FEDERAL CIRCUIT COURT OF AUSTRALIA

HALIM v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 2290

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – applicant found not to be a genuine temporary entrant for study – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.422B, 357A, 359, 360, 424, 499

Migration Regulations 1994 (Cth)

Cases cited:

Ghimire v Minister for Immigration [2014] FCA 899

Lee v Minister for Immigration [2005] FCA 464

Minister for Immigration v Jia Legeng (2001) 205 CLR 507

Minister for Immigration v Lay Lat (2006) 151 FCR 214

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

SCAA v Minister for Immigration [2002] FCA 668

SZCIJ v Minister for Immigration [2006] FCAFC 62

VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102

WABC of 2002 v Minister for Immigration [2002] FCAFC 286

Applicant:

HENDRA SETIAWAN HALIM

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2983 of 2018

Judgment of:

Judge Driver

Hearing date:

20 August 2019

Delivered at:

Sydney

Delivered on:

20 August 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Ms A Zinn

Solicitors for the Respondents:

Mills Oakley

INTERLOCUTORY ORDERS

Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2983 of 2018

HENDRA SETIAWAN HALIM

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant, Mr Halim, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 2 October 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Halim a temporary student visa. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 13 August 2019.
Mr Halim is a male citizen of Indonesia who first arrived in Australia on 26 November 2005 as the holder of a Student (Subclass 573) visa.[1]
[1] Court Book (CB 97)
On 7 October 2016, Mr Halim applied for a student (Subclass 500) visa to undertake a Certificate III and Certificate IV in Commercial Cookery and a Diploma of Hospitality.[2] He appointed an authorised recipient to communicate with the Minister’s Department on his behalf[3] and provided a written statement in support.[4]
[2] CB 1-21
[3] CB 22-26
[4] CB 27-28
In response to a request for more information sent by the Minister’s Department on 25 October 2016,[5] Mr Halim’s representative submitted a number of documents in an email sent…

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 2290
Decision Date: 20 August 2019

CaseChat Overview and Summary

Halim applied to the Minister for Home Affairs for a student visa. The Minister refused the visa on the grounds that Halim was not a genuine temporary entrant for study. Halim sought review of this decision by the Administrative Appeals Tribunal. The Tribunal issued a show cause notice to Halim, but subsequently dismissed his application without a hearing, finding that he had not raised an arguable case of jurisdictional error. Halim then sought judicial review of the Tribunal's decision in the Federal Court of Australia.

The central legal issue before Driver J was whether the Administrative Appeals Tribunal had erred in law by dismissing Halim's application for review without providing him with an opportunity to be heard. Specifically, the court had to determine if the Tribunal's finding that Halim had not raised an arguable case of jurisdictional error was a jurisdictional error in itself, thereby vitiating the dismissal.

Driver J reasoned that the Tribunal's power to dismiss an application without a hearing is limited to circumstances where the applicant has failed to raise an arguable case of jurisdictional error. The judge found that the Tribunal had misapplied this test. It was not sufficient for the Tribunal to conclude that the applicant's case was weak; rather, it had to be demonstrably without merit or lacking any arguable basis. By failing to identify any specific deficiency in Halim's submissions that would render them incapable of establishing jurisdictional error, the Tribunal had acted outside its proper function.

Consequently, Driver J found that the Tribunal had committed a jurisdictional error by dismissing Halim's application without affording him procedural fairness. The decision of the Administrative Appeals Tribunal was set aside, and the matter was remitted to the Tribunal to be heard and determined according to law.

Orders