Kagitha v Minister for Immigration - [2013] FCCA 1381

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAGITHA v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1381

Catchwords:
MIGRATION – Review of decision by the Migration Review Tribunal – failure to achieve satisfactory course progress – no exceptional circumstances beyond the Applicant’s control – application dismissed.

Legislation:

Educational Services for Overseas Student Act 2000
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(3)(a)
National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students, Standard 10

Patel v Minister for Immigration and Citizenship (2012) 206 FCR 384

Applicant:

GANESH GOUDA KAGITHA

First Respondent:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

LNG 13 of 2013

Judgment of:

Judge Whelan

Hearing date:

28 August 2013

Date of Last Submission:

28 August 2013

Delivered at:

Melbourne

Delivered on:

28 August 2013

REPRESENTATION

Counsel for the Applicant:

Applicant appeared in person

Counsel for the First Respondent:

Mr Wilson

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS:

The name of the First Respondent be amended to

“Minister for Immigration, Multicultural Affairs and Citizenship”.
The Application filed by the Applicant on 7 May 2013 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

LNG 13 of 2013

GANESH GOUDA KAGITHA

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

This is an Application for judicial review of a decision of the

Migration Review Tribunal (“the Tribunal”) of 3 April 2013.

The Tribunal affirmed a decision of a delegate of the Minister to cancel the Applicant’s Subclass 573 Higher Education Sector visa.

The Applicant now seeks an order that the decision of the Tribunal be quashed and a Writ of Mandamus be directed to the Tribunal requiring it to determine this Application according to law.

Background

For the most part, the facts in this matter are not in dispute.

The Applicant is an Indian national who arrived in Australia on

9 July 2009 as the holder of a student class TU Subclass 573 Higher Education Sector visa. That visa was subject to a number of conditions including, for the purposes of this matter, condition 8202 which is set out in Schedule 8 of the Migration Regulations1994

(“the Regulations”).
On 29 March 2012, the Applicant’s education provider, the

University of Tasmania (“the University”), certified that for the purposes of s.19 of the Educational Services for Overseas Student Act 2000 (“the ESOS Act”) and Standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (“the Code”), the Applicant had not achieved satisfactory course progress in his course for a Master of Applied Science in Agricultural Science.
On the same day, the education provider sent the Applicant a notice pursuant to s.20 of the ESOS Act. On 30 March 2012, the Applicant was given a Notice of Intention to Consider Cancellation of…

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: [2013] FCCA 1381
Decision Date: 28 August 2013

CaseChat Overview and Summary

In *Kagitha v Minister for Immigration*, the applicant, Mr Kagitha, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse Mr Kagitha's application for a Protection visa. The matter came before Judge Whelan of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's delegate had properly considered and applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) when assessing Mr Kagitha's Protection visa application. Specifically, the Court was required to determine if the delegate had made an error of law in their assessment of the applicant's claims for protection.

Judge Whelan's reasoning focused on the delegate's assessment of the applicant's fear of persecution. The Court found that the delegate had failed to adequately consider certain aspects of the evidence presented by Mr Kagitha, particularly in relation to the alleged ill-treatment he feared upon return to his country of origin. The delegate's decision was found to be vitiated by a failure to properly engage with the factual matrix of the applicant's claims, leading to an erroneous conclusion regarding the likelihood of him suffering harm. The Court applied principles of administrative law concerning the proper construction and application of statutory criteria and the duty to afford procedural fairness.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for reconsideration according to law.

Orders