FEDERAL COURT OF AUSTRALIA
Jan v Minister for Home Affairs [2019] FCA 1837
Appeal from: Jan v Minister for Home Affairs [2019] FCCA 739 File number: WAD 196 of 2019 Judge: COLVIN J Date of judgment: 8 November 2019 Catchwords: MIGRATION - appeal from a decision of the Federal Circuit Court dismissing application for judicial review of a decision of the Administrative Appeals Tribunal affirming the delegate's decision to refuse the appellants' application for a student visa - consideration of Direction No 53 - whether the Tribunal was bound to have regard to the matters stated in the Direction - whether the Tribunal erred in failing to have regard to certain matters stated in the Direction - whether a failure by the Tribunal to refer to each of the matters in the Direction demonstrated jurisdictional error - whether the Tribunal failed to consider certain evidence presented by the appellants - appeal dismissed Legislation: Migration Act 1958 (Cth) s 499
Migration Regulations 1994 (Cth) Schedule 2 cl 573.223
Cases cited: Bala v Minister for Immigration and Border Protection [2019] FCA 600
ETA067 v The Republic of Nauru [2018] HCA 46
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Nguyen v Minister for Home Affairs [2019] FCA 892
Singh v Minister for Immigration and Border Protection [2018] FCCA 3423
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203
VKTT v Minister for Home Affairs [2019] FCA 1018
Williams v Minister for Immigration and Border Protection [2014] FCA 674; (2014) 226 FCR 112
Date of hearing: 7 November 2019 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 55 Counsel for the Appellants: Mr DV Blades Solicitor for the Appellants: Tang Law Counsel for the First Respondent: Ms SJ Oliver Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
WAD 196 of 2019 BETWEEN: AMMAR ASLAM JAN
First Appellant
AYESHA SAQIB
Second Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
COLVIN J
DATE OF ORDER:
8 NOVEMBER 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants do pay the costs of the first respondent to be assessed if not agreed.
3.There be liberty to apply for a lump sum order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLVIN J:
Since 2011, Mr Ammar Aslam Jan has held student visas or associated bridging visas which allow him temporary residence in Australia. In 2012, he was married and since 2015 his wife has been in Australia. She has held visas dependent upon Mr Jan's visas. In the period from 2012 to 2017, Mr Jan…
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- Case
- [2019] FCA 1837
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the Tribunal was obligated to consider the matters outlined in Direction No 53, and if the Tribunal's omission to address certain matters within the Direction constituted a failure to consider evidence, leading to an error in jurisdiction. The court needed to determine whether the Tribunal's failure to refer to each matter in the Direction demonstrated a jurisdictional flaw and whether this failure also meant that the Tribunal did not consider the evidence provided by the appellants. The court's task was to examine the Tribunal's decision-making process and ensure it aligned with the procedural directives and evidence presented.
The court found that the Tribunal was not strictly bound to refer to every matter in Direction No 53, as the Direction provides flexibility in its application. The court held that the Tribunal's decision did not demonstrate a jurisdictional error, as it had considered the relevant matters and evidence. The court concluded that the Tribunal's approach was consistent with the principles of natural justice and procedural fairness. Therefore, the appeal was dismissed, and the appellants were ordered to pay the costs of the respondent, with liberty to apply for a lump sum order for costs.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellants do pay the costs of the first respondent to be assessed if not agreed.
3. There be liberty to apply for a lump sum order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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