Khader v Minister for Immigration - [2016] FCCA 882

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHADER v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 882

Catchwords:
MIGRATION – Review of former Migration Review Tribunal decision – refusal of a provisional skilled visa – provision of false information – no jurisdictional error.

PRACTICE AND PROCEDURE – Conduct of hearing in the absence of the applicant.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.98, 359A, 359C, 360

Migration Regulations 1994 (Cth)

Chung v Minister for Immigration [2015] FCA 163
Kaur v Minister for Immigration [2014] FCA 281
Singh v Minister for Immigration & Anor [2015] FCCA 2776
SZGJO v Minister for Immigration [2006] FCA 393
Trivedi v Minister for Immigration [2014] FCAFC 42

Zhang v Minister for Immigration & Anor [2012] FMCA 1011

Applicant:

ZAHEER ABDUL KHADER

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2141 of 2014

Judgment of:

Judge Driver

Hearing date:

15 April 2016

Delivered at:

Melbourne

Delivered on:

15 April 2016

REPRESENTATION

No appearance by or on the behalf of the Applicant

Solicitors for the Respondents:

Mr Brown of the Australian Government Solicitor

ORDERS

The name of the second respondent is amended to the “Administrative Appeals Tribunal”.
The application filed 22 October 2014 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2141 of 2014

ZAHEER ABDUL KHADER

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 29 September 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Khader, a skilled (provisional) (class VC) visa. Background facts relating to this matter are set out in the Minister’s outline of legal submissions.

Background

Mr Khader is a 30 year old Indian national who first arrived in Australia on 14 July 2009 as the holder of a student visa.
An application for a Skilled (Provisional) (Class VC) Subclass Skilled-Graduate 485 visa (the visa) was e-lodged on 9 June 2011.[1]
[1] Court Book (CB) 12, 22
The visa application included a Trades Recognition Australia (TRA) skills assessment reference number, TRA10/97641748, which purported to relate to a successful skills assessment as an automotive electrician, completed on 18 October 2010.[2]
[2] CB 19
Mr Khader’s academic qualification was recorded on the visa application as a Diploma in Automotive Engineering, undertaken at MITT from 23 July 2009 until 7 June 2011.[3]
[3] CB 20
The Minister’s Department sent an e-mail message to the e-mail address nominated in the visa application on 17 February 2012, alleging that the visa application included false and misleading information in relation to the TRA skills assessment, as TRA had confirmed that no successful skills assessment had ever…

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: [2016] FCCA 882
Decision Date: 15 April 2016

CaseChat Overview and Summary

The applicant, Mr. Khader, sought judicial review of a decision by the Migration Review Tribunal (MRT) which affirmed the refusal of his provisional skilled visa. The refusal was based on the applicant having provided false information to the Department of Immigration. The primary dispute concerned whether the MRT had committed a jurisdictional error in conducting its hearing in the applicant's absence.

The central legal issue before the Federal Circuit Court was whether the MRT's decision to proceed with the review hearing without the applicant present constituted a jurisdictional error. This required the court to consider the procedural fairness obligations owed by the MRT to an applicant in such circumstances, particularly in light of the applicant's failure to attend the hearing.

Judge Driver found that the MRT had not committed a jurisdictional error. The court reasoned that the applicant had been provided with adequate notice of the hearing date and time. Furthermore, the MRT had made reasonable attempts to contact the applicant prior to the hearing. In the absence of any explanation for the applicant's non-attendance or any request for an adjournment, the MRT was entitled to proceed with the hearing in his absence. The court applied the principles of procedural fairness, which require a tribunal to act fairly, but do not necessitate an adjournment or postponement simply because an applicant fails to attend a scheduled hearing without good reason.

The application for judicial review was dismissed.

Orders