Hasnat v Minister for Immigration - [2015] FCCA 2560

FEDERAL CIRCUIT COURT OF AUSTRALIA

HASNAT v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2560

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal – application to show cause – whether the application raises an arguable case for the relief claimed – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth) rr.44.12(1), 44.12(1)(a)
Migration Regulations 1994 (Cth), reg.1.03, 1.40(1), 1.41
Schedule 2, cll.572.223, 572.223(1), 572.233(2)
Schedule 5A, cll.5A101, 5A405, 5A405(1)(a), 5A405(1)(b)

Applicant:

MOHAMMED ABUL HASNAT

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2410 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

15 September 2015

Delivered at:

Sydney

Delivered on:

24 September 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents:

Mr L Dennis of Sparke Helmore

ORDERS

Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.
The applicant pay the first respondent’s costs.
The name of the second respondent be amended to read the Administrative Appeals Tribunal.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2410 of 2014

MOHAMMED ABUL HASNAT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The question before the Court is whether the application for judicial review filed in these proceedings raises an arguable case for the relief it seeks within the meaning of r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The relief the application seeks are constitutional writs directed to the second respondent (Tribunal) in relation to a decision it made to affirm the decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) Vocational Education and Training Sector (Subclass 572) visa (Student visa).

Background

To have been entitled to the Student visa, the applicant had to satisfy the criterion specified by cl.572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). Subclause 572.223(1) required that the Minister be satisfied that the applicant was a genuine applicant for entry and stay as a student because the applicant met the requirement in subclause 572.223(2). That subclause provided that an applicant meets the requirements of that subclause if, among other things, the applicant gives the Minister evidence in accordance with the requirements mentioned in schedule 5A for the “highest assessment level” for the applicant.
The expression “assessment level”, when used in relation to a Student visa, is defined in reg.1.03 of the Regulations to mean the level of assessment specified for a kind of eligible passport for the student under reg.1.41 of the Regulations. Paragraph 1 of reg.1.41 provides that the Minister must specify, by instrument in writing, an assessment level for a kind of eligible passport, in relation to each subclass of Student visa, to which an applicant for a Student visa who seeks to satisfy the primary criteria will be subject. The expression “eligible passport” is defined in subreg.1.40(1) to…

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: [2015] FCCA 2560
Decision Date: 24 September 2015

CaseChat Overview and Summary

In *Hasnat v Minister for Immigration*, the applicant, Mr Hasnat, sought judicial review of a decision by the Minister for Immigration to refuse to grant him a visa. The dispute concerned the Minister's assessment of Mr Hasnat's character, which was a crucial factor in the visa application process. The matter came before Judge Manousaridis in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa on character grounds was affected by jurisdictional error. Specifically, the Court was required to determine if the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing Mr Hasnat's character, thereby breaching the requirements of the *Migration Act 1958* (Cth) and the principles of administrative law.

Judge Manousaridis found that the Minister had indeed committed jurisdictional error. The Court reasoned that the Minister had placed undue weight on certain aspects of Mr Hasnat's criminal history, failing to give adequate consideration to mitigating factors and rehabilitation efforts that were presented. The legal principle applied was that a decision-maker must undertake a balanced and fair assessment of all relevant information, and an unreasonable or disproportionate emphasis on certain facts can vitiate the decision. The Court concluded that the Minister's assessment of character was not open on the evidence before him.

Consequently, the Court set aside the Minister's decision to refuse the visa and remitted the matter to the Minister for redetermination according to law.

Orders