Jan v Minister for Home Affairs - [2019] FCA 1837

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…

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] FCA 1837
Decision Date: 8 November 2019

CaseChat Overview and Summary

The case of Jan v Minister for Home Affairs involves an appeal from the Federal Circuit Court's dismissal of an application for judicial review, which in turn had affirmed the Administrative Appeals Tribunal's decision to refuse the appellants' application for a student visa. The matter under consideration revolves around the interpretation and application of Direction No 53 in the decision-making process. The appellants contested the Tribunal's adherence to the requirements set out in the Direction, arguing that the Tribunal failed to properly consider certain matters, which they claimed led to a jurisdictional error. Additionally, they asserted that the Tribunal did not adequately address specific evidence presented during the proceedings.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For those reasons, ground 4 has not been made out.Conclusion and costs It was accepted by both parties that costs should follow the event. Therefore, the appeal should be dismissed with costs, to be assessed if not agreed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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