Khan v MICMA

Case [2023] FCA 463

FEDERAL COURT OF AUSTRALIA

Khan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 463  

Appeal from: Khan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 271
File number: VID 772 of 2021
Judgment of: BEACH J
Date of judgment: 12 May 2023
Catchwords:  MIGRATION – appeal from decision of the Federal Circuit and Family Court – whether applicants are eligible for a child visa under sub-cl 101.213(1)(c) of schedule 2 to the Migration Regulations 1994 (Cth) – applicants never commenced eligible study – primary judge not satisfied of lack of educational opportunities – appeal dismissed
Legislation:

Acts Interpretation Act 1901 (Cth) s 15AA

Migration Act 1958 (Cth) ss 31(3), 65(1)

Migration Regulations 1994 (Cth) reg 1.03; sch 2 cls 101.213, 101.221(2)(b)

Cases cited:

BLBY v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 128

Minister for Home Affairs v Buadromo (2018) 267 FCR 320

Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431

Minister for Immigration and Citizenship v Henschel [2013] FCCA 584

Nguyen v Minister for Immigration and Border Protection [2016] FCCA 2373

Opoku-Ware v Minister for Immigration and Border Protection (2015) 297 FLR 416

Sok v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FMCA 190

Sok v Minister for Immigration and Citizenship [2007] FCA 413

Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531

Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 145
Date of hearing: 4 April 2023
Counsel for the Appellant: Dr A. McBeth
Solicitor for the Appellant: Human Rights Law Centre
Counsel for the First Respondent: Mr N. Swan
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs and otherwise did not appear

ORDERS

VID 772 of 2021
BETWEEN:

JUMA KHAN

Appellant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

BEACH J

DATE OF ORDER:

12 MAY 2023

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.The appeal be dismissed.

3.The appellant pay the first respondent’s costs of and incidental to his appeal.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

BEACH J:

  1. The appellant appeals from a judgment of the Court below which dismissed his application for judicial review of a decision of the Tribunal which had affirmed decisions of a delegate of the Minister to refuse to grant Child (Migrant) (Class AH) visas to his two sons.

  2. For the reasons that follow I would dismiss the appeal.

    Some relevant background

  3. The visa applicants are citizens of Afghanistan who were born in 1993 and 1995.  They are of Hazara ethnicity.  They fled Afghanistan with their family over the border into Pakistan to the Hazara enclave within Quetta, Pakistan.  There they…

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Details
AGLC
Khan v MICMA [2023] FCA 463
Case
[2023] FCA 463
Decision Date

CaseChat Overview and Summary

The appeal before the court concerns the eligibility of two Afghan nationals, Khan and Khan, for child visas under the Migration Regulations 1994 (Cth). The appellant, an Australian permanent resident, sought review of the delegate’s decision to refuse the visas on the basis that the applicants did not meet the relevant criteria. The Federal Circuit and Family Court was tasked with determining whether the applicants were eligible for a child visa under cl 101.213(1)(c) of the Migration Regulations. This criterion requires that the applicant has been undertaking a full-time course of study at an educational institution leading to a professional, trade, or vocational qualification since turning 18 or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system.

The court had to decide whether the primary judge's finding that the applicants were not satisfied of the lack of educational opportunities was correct. Additionally, the court had to assess whether the applicants had ever commenced eligible study as required by cl 101.213(1)(c). The court examined the applicants' backgrounds and the specific circumstances of their educational pursuits. The court found that the applicants had not commenced any eligible study and the primary judge was not satisfied that there were a lack of educational opportunities available to them. Therefore, the court held that the primary judge's decision was correct.

The court dismissed the appeal, holding that the applicants did not meet the requirements of cl 101.213(1)(c) and consequently were not eligible for a child visa. The court further ruled that the appellant should pay the first respondent’s costs of and incidental to the appeal. The court's decision affirmed the delegate's refusal to grant the visas and the Tribunal's affirmation of that decision. The appeal was dismissed with costs to the appellant.

Orders

Orders of the court

1. The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2. The appeal be dismissed.

3. The appellant pay the first respondent’s costs of and incidental to his appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons that follow I would dismiss the appeal.Some relevant background The visa applicants are citizens of Afghanistan who were born in 1993 and 1995. They are of Hazara ethnicity. They fled Afghanistan with their family over the border into Pakistan to the Hazara enclave within Quetta, Pakistan. There they completed their secondary schooling. In June 2017 the two visa applicants were then deported back to Afghanistan. On 19 December 2017, an application for the visas was lodged on their behalf by the appellant who sponsored their application. The appellant is an Australian permanent resident holding a Protection (Subclass 866) visa. Now the visa applicants had to meet a range of criteria in order to be granted the visas; see ss 31(3) and 65(1)(a)(ii) of the Migration Act 1958 (Cth). Relevantly, this included satisfaction of the criteria in cl 101.213, schedule 2 of the Migration Regulations 1994 (Cth). That criteria had to be met at the time of their application. Clause 101.213 at the relevant time stipulated the criteria to be:(1)If the applicant has turned 18:(a) the applicant:(i) is not engaged to be married; and(ii) does not have a spouse or de facto partner; and(iii) has never had a spouse or de facto partner; and(b)the applicant is not engaged in full-time work; and(c)subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.(2)Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child. Clause 101.221 was also applicable and set out criteria that had to be met at the time of the decision with respect to their application. It relevantly provided:(1)In the case of an applicant who had not turned 18 at the time of application, the applicant:(a)continues to satisfy the criterion in clause 101.211; or(b)does not continue to satisfy that criterion only because the applicant has turned 18.(2) In the case of an applicant who had turned 18 at the time of application:(a) the applicant:(i)continues to satisfy the criterion in clause 101.211; or(ii)does not continue to satisfy that criterion only because the applicant has turned 25; and(b) the applicant continues to satisfy the criterion in clause 101.213. On 3 December 2018, a delegate of the Minister refused to grant the visas. In form, separate decisions were made with respect to each visa applicant. The delegate found that neither visa applicant satisfied cl 101.213(1)(c). On 21 December 2018, the appellant sought review of the delegate’s decisions before the Tribunal. A combined application for review was lodged by the appellant. On 2 March 2021 a hearing was held by the Tribunal. On 11 March 2021, the Tribunal affirmed the delegate’s decisions. The Tribunal found that neither visa applicant had satisfied the criterion in cl 101.213(1)(c).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

But in any event, I have rejected ground 2 of the appeal.Conclusion For the foregoing reasons the appeal must be dismissed with costs.

Ratio Decidendi

Legal Principle Established

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