HUDA v Minister for Immigration - [2016] FCCA 2525

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUDA v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2525

Catchwords:
MIGRATION – Visa cancellation – subclass 573 Higher Education Sector visa – applicant ceases enrolment in higher education degree and takes up Certificate III in Bricklaying – subsequently obtains offer of enrolment in Bachelor of Business – failed to “continue to satisfy” visa conditions.

Legislation:

Migration Act 1958 (Cth), s. 116

Migration Regulations 1994 (Cth), Sch. 2

Cases cited:

Singh v Minister for Immigration and Border Protection [2016] FCA 679

Applicant:

BRIJENDRA HUDA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

DNG 3 of 2016

Judgment of:

Judge Young

Hearing date:

20 September 2016

Date of Last Submission:

20 September 2016

Delivered at:

Darwin

Delivered on:

20 September 2016

REPRESENTATION

The Applicant appearing in person

Counsel for the Respondents:

Ms Newman

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application filed 18 January 2016 be dismissed.
The applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 3 of 2016

BRIJENDRA HUDA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

This is an application for review of a decision of the Administrative Appeals Tribunal (AAT) made on 23 December 2015. That decision affirmed a decision of the delegate made on 6 February 2015 to cancel the applicant’s Subclass 573 Higher Education Sector visa pursuant to section 116 of the Migration Act 1958. The applicant is a citizen of India. He was granted a Subclass 573 Higher Education Sector student visa in February 2014. On 1 December 2014, the applicant was given a notice of intention to consider cancellation of his visa on the ground that he did not satisfy condition 8516 of his visa.
That was on the basis that his enrolment in a higher degree course, namely, Master of Public Health, had ceased. In fact, the applicant had ceased his enrolment in that degree, and I take it that that was by 10 July 2014, and he subsequently enrolled in and, I understand, completed a Certificate III in Bricklaying. The substance of condition 8516 is that it requires that the holder of the visa “must continue to be a person who would satisfy the primary or secondary criteria as the case requires for the grant of the visa.” The secondary criteria relate to family members of a visa holder and are not relevant for present purposes.
The primary criteria to be satisfied at the time of decision included criterion 573.231, which provides that:
If subclass 573.223(1A) does not apply:
(a) the applicant is enrolled in, or is the subject of a…

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.

Continue reading HUDA v Minister for Immigration

Details

AGLC: HUDA v Minister for Immigration [2016] FCCA 2525
Case: [2016] FCCA 2525
Decision Date: 20 September 2016

CaseChat Overview and Summary

The Federal Court of Australia, constituted by Judge Young, considered an application for judicial review brought by the applicant, HUDA, against the Minister for Immigration. The dispute concerned the Minister's decision to refuse to grant HUDA a visa.

The primary legal issue before the Court was whether the delegate of the Minister had erred in law when assessing HUDA's application for a visa, specifically in relation to the application of the character provisions under the *Migration Act 1958* (Cth). The Court was required to determine if the delegate's assessment of HUDA's criminal record and its relevance to the character test had been conducted in accordance with the relevant legislative framework and principles of administrative law.

Judge Young found that the delegate had failed to properly consider all relevant information and had applied an incorrect interpretation of the character provisions. The Court reasoned that the delegate's decision was vitiated by a failure to afford procedural fairness and by an error of law in the assessment of the applicant's character. The principles of administrative law, including the requirement for a decision-maker to consider all relevant material and to apply the law correctly, were central to the Court's determination.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for reconsideration according to law.

Orders