Khan v Minister for Immigration - [2014] FCCA 2314

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHAN v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2314

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal (Tribunal) – whether applicant received notice of Tribunal’s request for information under s.359(1) of the Migration Act 1958 (Cth) – whether because the applicant did not give the information requested by the Tribunal the Tribunal was entitled to determine application for review without inviting the applicant to attend a hearing to give evidence and present arguments – application for review dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(e), 16.05
Migration Act 1958 (Cth), ss.359, 359(1), 359(2), 359(3), 359C(1), 360(1), 360(2), 379A, 379A(5)

Applicant:

SHAGIL GHANI KHAN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2041 of 2013

Judgment of:

Judge Manousaridis

Hearing dates:

17 December 2013, 7 February 2014 and

9 April 2014

Delivered at:

Sydney

Delivered on:

10 October 2014

REPRESENTATION

Applicant in person on 17 December 2013 & 7 February 2014.

No appearance by or on behalf of the applicant on 9 April 2014.

Solicitors for the Respondents on 17 December 2013:

Solicitors for the Respondents on 7 February 2014 & 9 April 2014:

Mr Baird

Clayton Utz

Mr Chami

Clayton Utz

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs in the sum of $10,000.
The first respondent is to arrange to have these orders entered and the first respondent is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his nominated address for service, together with a copy of r.16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2041 of 2013

SHAGIL GHANI KHAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant seeks judicial review of a decision of the second respondent (Tribunal) that affirmed a decision under review not to grant the applicant a Student (Temporary) (Class TU) visa (Student visa).
The ground on which the Tribunal affirmed the decision under review was that the applicant had not substantially complied with his last substantive visa, a Subclass 572 visa. The Tribunal found the applicant failed to maintain enrolment in all registered courses of study he had enrolled in, and there was no evidence before it to explain the applicant’s failure to maintain his enrolment in a registered course.
The Tribunal made its decision without first inviting the applicant under s.360(1) of the Migration Act 1958 (Cth) (Act) to appear before it to give evidence and present arguments. The Tribunal did not invite the applicant to appear because by letter dated 14 June 2013 it had invited the applicant under s.359 of the Act to provide information, but the applicant failed to provide any information.[1] That engaged s.359C(1) of the Act which provides that if a person is invited in…

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 Khan v Minister for Immigration

Details

AGLC: Khan v Minister for Immigration [2014] FCCA 2314
Case: [2014] FCCA 2314
Decision Date: 10 October 2014

CaseChat Overview and Summary

Khan (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant him a visa. The applicant had applied for a Protection visa, which was refused by the delegate of the Minister. The applicant then sought review of that decision by the Administrative Appeals Tribunal (AAT), which affirmed the refusal. The applicant subsequently filed an application for judicial review in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the AAT had erred in law in its assessment of the applicant's claims for protection. Specifically, the Court was required to consider whether the AAT had failed to adequately assess the risk of harm the applicant might face if returned to his country of origin, and whether it had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) in determining whether the applicant met the criteria for a Protection visa.

Judge Manousaridis found that the AAT had made a jurisdictional error by failing to adequately consider all the evidence before it regarding the applicant's claims. The Court held that the AAT had not properly engaged with the specific allegations made by the applicant concerning past persecution and the well-foundedness of his fear of future persecution. The Court applied principles of administrative law concerning the duty to provide adequate reasons and the proper application of statutory criteria.

The Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders