Jan v Minister for Home Affairs - [2019] FCCA 739

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAN & ANOR v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 739

Catchwords:
MIGRATION – Administrative Assessment Tribunal – application for a Student (Temporary) (Class TU) visas – whether the Tribunal failed to have regard to the whole of the applicants circumstances in their home country – whether the adverse findings by the Tribunal were illogical or irrational – whether the Tribunal had a real and meaningful engagement and had regard to paragraph 12 of Ministerial Direction 53 – whether the Tribunal failed to consider all of the applicant’s claims and evidence – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476

Migration Regulations 1994 (Cth), cl.500.311, 573.223 of Schedule 2

First Applicant:

AMMAR ASLAM JAN

Second Applicant:

AYESHA SAQIB

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 314 of 2018

Judgment of:

Judge Street

Hearing date:

25 March 2019

Date of Last Submission:

25 March 2019

Delivered at:

Parramatta

Delivered on:

25 March 2019

REPRESENTATION

Counsel for the Applicant:

Mr D Blades

Solicitors for the Applicant:

Tang Law

Counsel for the Respondents:

Ms C Walsh

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The hearing of the proceedings are to be by way of audio link pursuant to Part 6 Division 5 of the Federal Circuit Court of Australia Act 1999 (Cth).
Ayesha Saqib is joined as a second applicant to the proceedings and the Court dispenses with the need for the filing of any further document in that regard.
The amended application is dismissed.
The applicants pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 25 March 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PEG 314 of 2018

AMMAR ASLAM JAN

First Applicant

AYESHA SAQIB

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 17 May 2018 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa.
The applicants are citizens of Pakistan and the first applicant is the primary applicant and the second applicant is his partner and is included as a member of the family unit.
On 17 June 2016, the delegate found the first applicant had failed to meet the criteria for the grant of the visa. The delegate, in that regard, expressly referred to the requirements of cl 573.223(1)(a) of the Migration Regulations 1994 (Cth) (“the Regulations”) and also the Ministerial Direction No 53. The delegate referred to the PRISMS records and the short courses that the first applicant had undertaken. The delegate also referred to the fact that since the first applicant’s arrival in October 2011, the first applicant had spent 141 days outside Australia and…

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: [2019] FCCA 739
Decision Date: 25 March 2019

CaseChat Overview and Summary

The applicant, Jan, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) concerning an application for a Student (Temporary) (Class TU) visa. The dispute centred on whether the AAT had adequately considered the applicant's circumstances in their home country and whether its adverse findings were illogical or irrational. The matter came before Judge Street of the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were whether the AAT had failed to have regard to the whole of the applicant's circumstances in their home country, whether the adverse findings made by the Tribunal were illogical or irrational, and whether the Tribunal had engaged in a real and meaningful way with paragraph 12 of Ministerial Direction 53. Additionally, the Court considered whether the AAT had failed to consider all of the applicant's claims and evidence.

Judge Street found that no jurisdictional error had been made out. The Court concluded that the AAT had properly considered the applicant's circumstances and evidence, and that its findings were not illogical or irrational. The Tribunal's engagement with Ministerial Direction 53 was also deemed sufficient. Consequently, the amended application was dismissed.

Orders