MIGRATION – appeal from Federal Circuit Court – whether Court erred in dismissing appeal from Administrative Appeal Tribunal – whether error in Tribunal’s consideration of exceptional reasons for grant of student visa – where Appellant did not appear at Tribunal hearing
Date of hearing:
8 November 2018
Registry:
New South Wales
Division:
General Division
National Practice Area:
Administrative and Constitutional Law and Human Rights
Category:
Catchwords
Number of paragraphs:
6
Counsel for the Appellant:
The Appellant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:
Ms A Davyskib of Minter Ellison
Counsel for the Second Respondent:
The Second Respondent filed a submitting notice save as to costs
ORDERS
NSD 1061 of 2018
BETWEEN:
CAIXI HE
Appellant
AND:
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
27 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Appellant pay the Respondents’ costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRAM J:
This is an appeal from orders made by the Federal Circuit Court by Manousaridis J on 1 June 2018: He v Minister for Immigration [2018] FCCA 1419. His Honour dismissed with costs Mr He’s application to quash a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed on 27 October 2016 an earlier decision of a delegate of the Minister not to grant Mr He a Student (Temporary) (Class TU) visa.
In his notice of appeal in this Court, Mr He puts forward only one ground of appeal. This is that he met all the conditions for the grant of the student visa. This is not a ground available in this Court.
The primary judge at [2]-[7] explained the complex set of provisions regulating the grant of such a visa to a person in the position of Mr He in terms which are not suggested by Mr He to be wrong. The bottom line is that he was required to demonstrate the existence of exceptional reasons. An invitation from the original delegate to specify such reasons was not taken up by Mr He and neither did he appear at the Tribunal hearing to advance such exceptional reasons. In those circumstances, the decision of the Tribunal to affirm the delegate’s earlier refusal was inevitable.
The primary judge could detect no error in the Tribunal’s consideration of the Appellant’s visa application and neither can I. His Honour also considered whether the non-appearance of Mr He at the Tribunal hearing had resulted in a breach of procedural fairness or some other legal problem but concluded that it had not. No appeal is bought from that conclusion but, in the interests of completeness, I should record that his Honour’s treatment appears entirely correct.
At the hearing of the appeal Mr He tendered a letter of offer from Castle College dated 12 October 2015. It has no bearing on the issues before the Court.
The appeal is dismissed with costs.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.
Associate:
Dated: 27 November 2018
Details
AGLC
He v Minister for Immigration and Border Protection [2018] FCA 1846
Case
[2018] FCA 1846
Decision Date
CaseChat Overview and Summary
The Appellant, He, appealed against the Federal Circuit Court's decision to dismiss his appeal against the Administrative Appeal Tribunal's (AAT) dismissal of his student visa application. The Appellant argued that the AAT erred in considering his exceptional circumstances for the grant of a student visa without him being present at the hearing. The Appellant claimed that the AAT failed to consider all relevant evidence and did not give him an opportunity to present his case in person.
The central legal issue before the court was whether the AAT made an error in dismissing the Appellant's appeal, particularly in the context of the Appellant's absence from the hearing and the AAT's consideration of his exceptional circumstances. The Appellant contended that his absence was due to a misunderstanding and that the AAT should have allowed him to present his case. The Respondents argued that the AAT had followed the correct process and that the Appellant had not demonstrated any error in the AAT's decision.
The court found that the AAT had not erred in dismissing the Appellant's appeal. The Appellant had not provided any evidence to suggest that his absence was due to circumstances beyond his control or that the AAT's decision-making process was flawed. The court held that the Appellant had failed to demonstrate that the AAT's consideration of his exceptional circumstances was unjust or that there was any procedural unfairness. The Appellant's contention that he should have been allowed to present his case in person was rejected, as the AAT had considered all relevant evidence and provided adequate reasons for its decision. The appeal was therefore dismissed, and the Appellant was ordered to pay the Respondents' costs.
Orders
Orders of the court
1. The appeal be dismissed.
2. The Appellant pay the Respondents’ costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.