KHADKA v Minister for Immigration and Anor - [2020] FCCA 1879

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHADKA v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1879

Catchwords:
MIGRATION – Administrative Appeal Tribunal – application for Student (Temporary) (Class TU) (Subclass 500) visa – whether the Tribunal erred in law by not providing adequate opportunity to the applicant to produce a COE – whether the Tribunal lacked procedural fairness, resulting in a miscarriage of justice – whether there is jurisdictional error – no jurisdictional error made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss, 65

Migration Regulations 1994 (Cth), cl.500.211

Cases cited:

Nehrupandiyan v Minister for Immigration and Border Protection [2019] FCA

123

Applicant:

BINOD KHADKA

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3320 of 2018

Judgment of:

Judge Humphreys

Hearing date:

9 July 2020

Date of Last Submission:

9 July 2020

Delivered at:

Parramatta

Delivered on:

9 July 2020

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Ms Zinn, Mills Oakley Lawyers

ORDERS

The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The Applicant to pay the First Respondent’s costs fixed in the amount of $4,100.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 3320 of 2018

BINOD KHADKA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURA AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from transcript)

Introduction

The applicant is a citizen of Nepal. The applicant first came to Australia in 2007 to study Information Technology. Since the applicant’s arrival, he has completed courses in Information Technology, Business and Management.
On 26 May 2017, a delegate of the Minister for Immigration and Border Protection (“the delegate”) refused to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa under s 65 of the Migration Act 1958 (Cth) (“the Act”). The delegate refused to grant the visa on the basis that the applicant, did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).
The applicant sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 5 November 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant a student visa.
The applicant now seeks judicial review of the Tribunal decision.

The Administrative Appeals Tribunal’s Decision

After setting out the relevant background, the Tribunal correctly identified that the criteria for Subclass 500 (Student) visa include that at the time of the decision, the applicant is enrolled in a course of study (see cl 500.211(a) of the Regulations). The applicant did not claim to meet any the alternative criteria in cl 500.211 of the Regulations.
At paragraph 10 of its decision, the Tribunal noted that the applicant was invited by letter dated 8 October 2018, to attend a hearing on 15 October 2018. That invitation requested the applicant to provide a copy of a current…

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.

Continue reading KHADKA v Minister for Immigration and Anor

Details

AGLC: KHADKA v Minister for Immigration [2020] FCCA 1879
Case: [2020] FCCA 1879
Decision Date: 9 July 2020

CaseChat Overview and Summary

The applicant, Mr. Khadka, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) concerning his application for a Student (Temporary) (Class TU) (Subclass 500) visa. The Minister for Immigration and Border Protection was the respondent. The core of the dispute revolved around whether the AAT had afforded Mr. Khadka adequate procedural fairness in its consideration of his visa application.

The central legal issues before the Court were whether the AAT had erred in law by failing to provide Mr. Khadka with a sufficient opportunity to produce a Confirmation of Enrolment (COE), and consequently, whether this failure amounted to a lack of procedural fairness, leading to a miscarriage of justice and jurisdictional error.

Judge Humphreys found that the AAT had not committed jurisdictional error. The Court reasoned that the applicant had been given notice of the requirement for a COE and had been provided with opportunities to submit it. The Tribunal's decision was based on the information available to it at the time, and the applicant had not demonstrated that he was denied a fair hearing or that the Tribunal acted outside its jurisdiction.

Accordingly, the application for judicial review was dismissed.

Orders