Islam v Minister for Immigration - [2014] FCCA 1829

FEDERAL CIRCUIT COURT OF AUSTRALIA

ISLAM v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1829

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a student visa – Tribunal finding that applicant had failed to comply with a condition on his previous student visa – no jurisdictional error.

Legislation:

Education Services for Overseas Students Act 2000 (Cth), ss.19, 20

Migration Act 1958 (Cth), ss.65, 116, 349, 359A

Migration Amendment (Redundant and Other Provisions) Regulation 2014 (Cth)
Migration Regulations 1994 (Cth)

Casse v Minister for Immigration [2013] FCA 1007
Hassan v Minister for Immigration [2012] FCA 816
Jayasekara v Minister for Immigration (2006) 156 FCR 199

Minister for Immigration v Eshetu (1999) 197 CLR 611

Patel v Minister for Immigration (2012) 206 FCR 384; [2012] FCA 958
Singh v Minister for Immigration & Anor [2011] FMCA 972
Vannemreddy v Minister for Immigration [2013] FCA 245

Applicant:

K M FOYZUL ISLAM

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2983 of 2013

Judgment of:

Judge Driver

Hearing date:

14 August 2014

Delivered at:

Sydney

Delivered on:

22 August 2014

REPRESENTATION

Solicitors for the Applicant:

Mr M Jones

Parish Patience Immigration Law

Solicitors for the Respondents:

Mr L Dennis

Sparke Helmore

ORDERS

The application as amended on 5 August 2014 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2983 of 2013

K M FOYZUL ISLAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

On 14 August 2014, I dismissed Mr Islam’s application for judicial review of a decision of the Migration Review Tribunal (Tribunal) made on 1 November 2013. The Tribunal had affirmed a decision of a delegate of the Minister not to grant Mr Islam a temporary student visa. The following are my reasons for the dismissal order (and the consequential costs order) that I made on 14 August 2014.
The following statement of background facts is derived from the submissions of the Minister filed on 12 August 2014.
Mr Islam, a citizen of Bangladesh, applied for a Student (Temporary) (Class TU) visa on 15 March 2012[1]. The only relevant visa subclass was Subclass 573. Among the primary criteria to be satisfied at the time of decision for the grant of a Subclass 573 visa was that in clause 573.235 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations)[2]. That clause required Mr Islam to have complied substantially with the conditions that applied to the last of any substantive visa held by him. Relevantly, the last visa held by Mr Islam was another Subclass 573 visa from 2 September 2010 to 15 March 2012[3].
[1] Court Book (CB) 7
[2] Clause 573.235 of Schedule 2 to the Regulations was repealed by the Migration Amendment (Redundant and Other Provisions)…

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: [2014] FCCA 1829
Decision Date: 22 August 2014

CaseChat Overview and Summary

In *Islam v Minister for Immigration*, the applicant, Mr. Islam, sought judicial review of a decision by the Minister for Immigration to refuse his application for a protection visa. The dispute centred on whether Mr. Islam had established a well-founded fear of persecution for reasons of his membership of a particular social group, as required by the *Migration Act 1958* (Cth).

The primary legal issue before Judge Driver was whether the Minister's delegate had erred in law by failing to properly consider and assess the evidence relating to Mr. Islam's alleged membership of a particular social group, specifically, individuals who had been involved in political activism against the ruling regime in their country of origin. The court was asked to determine if the delegate's assessment of this claim was reasonable and consistent with the relevant provisions of the *Migration Act* and the *Migration Regulations 1994* (Cth).

Judge Driver found that the delegate had failed to adequately engage with the evidence presented by Mr. Islam concerning his political activities and the potential consequences he faced upon return to his home country. The delegate's reasoning was found to be superficial and did not demonstrate a proper understanding of what constitutes a "particular social group" in the context of international refugee law. The court applied the principles established in cases such as *Minister for Immigration and Ethnic Affairs v Teoh* and *Chan v Minister for Immigration and Ethnic Affairs*, emphasizing the need for a thorough and evidenced-based assessment of claims for protection.

The application for judicial review was granted, and the decision of the Minister's delegate was set aside. The matter was remitted to the Minister for reconsideration according to law.

Orders