Iftikhar v Minister for Immigration - [2018] FCCA 2924

FEDERAL CIRCUIT COURT OF AUSTRALIA

IFTIKHAR v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2924

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – student visa – protection claims – findings open to the Tribunal on the evidence before it – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.116

Cases:

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259

Applicant:

AHMED IFTIKHAR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2244 of 2016

Judgment of:

Judge Hartnett

Hearing date:

4 October 2018

Delivered at:

Melbourne

Delivered on:

17 October 2018

REPRESENTATION

The Applicant:

In Person

Counsel for the First Respondent:

Mr Roe

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2244 of 2016

AHMED IFTIKHAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Before the Court is an application that was filed on 14 October 2016 seeking judicial review of a decision of the Second Respondent (‘the Tribunal’) which affirmed a decision of a delegate of the First Respondent (‘the delegate’) to cancel the Applicant’s Student Temporary (Class TU) Higher Education Sector (Subclass 573) visa (‘the visa’).
The Applicant subsequently filed an amended application for judicial review on 14 June 2017. The grounds on which the Applicant proceeds are as follows:-
(1) The Tribunal erred in applying the incorrect test for the cancellation of the visa, in that it found that the applicant was in breach of regulation 573.223(1)(a) because he had applied for a protection visa while in Australia.
Particulars
(a)the Tribunal erred in finding that “breach” of regulation 573.223(1)(a) is relevant to a decision to cancel a visa. That provision is a criterion that must be satisfied at the time the visa is granted and is not applicable to a decision to cancel a visa for breach of condition 8202.
(b)the Tribunal erred in finding that applying for a protection visa was a breach of regulation 573.223(1)(a).

(2)The Tribunal made a jurisdictional error in failing to consider a claim made by the applicant, namely the claim that the applicant had further reasons to fear persecution or significant harm that had arisen since his protection visa application was rejected by the delegate.

Particulars

(a)The Tribunal found that there were no international obligations relevant to the applicant’s circumstances, based on the fact that the Department had considered his claim for a protection visa and rejected it.

(b)the Tribunal gave no consideration to claims raised by the applicant during the Tribunal hearing that events occurring in Pakistan after his protection visa application was rejected by the delegate gave rise to additional reasons to fear persecution and significant harm under and that Australia’s international…

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: [2018] FCCA 2924
Decision Date: 17 October 2018

CaseChat Overview and Summary

The applicant, Iftikhar, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) concerning his application for a protection visa. The Minister for Immigration was the respondent. The core of the dispute revolved around the AAT's assessment of Iftikhar's claims for protection.

The primary legal issue before the Federal Circuit Court was whether the AAT had committed jurisdictional error in its review of the Minister's decision to refuse Iftikhar's protection visa application. This required the court to consider whether the findings made by the AAT were open to it on the evidence presented.

Judge Hartnett found that the AAT had not erred in law. The Tribunal had properly considered the evidence before it and made findings that were open to it. Consequently, there was no jurisdictional error, and the application for review was dismissed.

Orders