Keong v Minister for Immigration - [2018] FCCA 476

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEONG v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 476

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Application for a Student visa which meant satisfaction of cl.572.223 “genuine temporary entry criterion” – Delegate and Tribunal not satisfied that Applicant satisfied this requirement because of the history of his studies since his arrival in Australia in 2008 – no jurisdictional error established – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 499

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration v Brar (2012) 201 FCR 240
SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109

Applicant:

KON JIN KEONG

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2122 of 2017

Judgment of:

Judge Dowdy

Hearing date:

28 February 2018

Delivered at:

Sydney

Delivered on:

28 February 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent:

Ms K. Crawford

Solicitors for the First Respondent:

HWL Ebsworth

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 5 July 2017 is dismissed.
The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2122 of 2017

KON JIN KEONG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

The Applicant is a citizen of Malaysia aged 35 years, having been born on 13 January 1983.
On 3 March 2016 he applied for a Student (Temporary) (Class TU) visa (Student visa), which meant that he had to satisfy cl.572.223 in Sch.2 to the Migration Regulations 1994 (Cth), which required that at the time of decision the Applicant was a genuine Applicant for entry and stay as a student because the Minister was satisfied that the Applicant intended genuinely to stay in Australia temporarily. This is known generally as the “genuine temporary entry criterion”.
By Application filed in this Court on 5 July 2017, the Applicant seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 13 June 2017, which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 26 May 2016, refusing to grant him a Student visa on the ground that the Delegate was not satisfied that he was a genuine applicant for entry and stay as a student.

Background

The Applicant was granted his initial Student visa offshore on 3 November 2008, which was valid until 20 January 2011. He arrived in Australia on 12 November 2008. Since his initial arrival onshore he has held either a Student visa or associated bridging visa.

Decision of the Delegate

The Delegate in her Decision Record noted that the Applicant, since arrival in Australia, had only completed…

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: [2018] FCCA 476
Decision Date: 28 February 2018

CaseChat Overview and Summary

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

The primary legal issue before Dowdy J was whether the delegate of the Minister had erred in law in assessing Mr Keong's claim for a protection visa. Specifically, the court was required to determine if the delegate had failed to properly consider all relevant evidence, including evidence of past persecution and the objective country information relating to Sri Lanka, and whether the delegate's adverse credibility findings were reasonably open on the evidence.

Dowdy J found that the delegate had failed to adequately consider the cumulative effect of the evidence presented by Mr Keong, particularly in relation to the alleged threats and harassment he faced. The court reiterated the principle that an assessment of a protection visa claim must involve a holistic and cumulative consideration of all relevant factors, and that adverse credibility findings must be based on demonstrable inconsistencies or lack of plausibility in the applicant's account. The delegate's failure to engage with significant portions of the evidence and to provide adequate reasons for rejecting key aspects of Mr Keong's testimony led to the conclusion that the decision was affected by an error of law.

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

Orders