Khan v Minister for Immigration - [2010] FMCA 546

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KHAN & ORS v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 546

MIGRATION – Review of Migration Review Tribunal decision – refusal of a skilled residence visa – Tribunal finding that a trade skills assessment preceding the visa application was made on the basis of false material – interpretation of clause 880.230 relating to false or misleading information – 900 hours work experience requirement is a requirement of the skills assessment authority not the Tribunal and the relevant time for the purposes of deciding whether false or misleading information was given to obtain a skills assessment is the time of the skills assessment.

Migration Act 1958 (Cth), s.20
Migration Regulations 1994 (Cth)

Berenguel v Minister for Immigration (2010) 264 ALR 417
Islam v Minister for Immigration [2010] FMCA 379
Minister for Immigration v Dela Cruz (1992) 110 ALR 367
Talukder v Minister for Immigration [2009] FMCA 223
Talukder v Minister for Immigration [2009] FCA 916

First Applicant:

MOHAMMAD SAIFUR RAHMAN KHAN

Second Applicant:

MANZIR YASMIN EMON

Third Applicant:

MARZUQ RAHMAN KHAN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 819 of 2010

Judgment of:

Driver FM

Hearing date:

26 July 2010

Delivered at:

Sydney

Delivered on:

16 August 2010

REPRESENTATION

Counsel for the Applicant:

Mr P Reynolds

Solicitors for the Applicant:

Parish Patience Immigration Lawyers

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 819 of 2010

MOHAMMAD SAIFUR RAHMAN KHAN

First Applicant

MANZIR YASMIN EMON

Second Applicant

MARZUQ RAHMAN KHAN

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”). The decision was made on 17 March 2010. The Tribunal affirmed decisions of a delegate of the Minister not to grant the applicants Skilled Independent Overseas Student (Residence) visas. The substantive visa claims were made by the first applicant (Mr Khan) and references to the “the applicant” are references to him. The following statement of background facts is derived from the parties’ written submissions.
On 15 May 2007, the applicant lodged an application with the Department of Immigration and Citizenship (“Department”) for a Skilled – Independent overseas Student (Class DD) (Subclass 880) visa (court book “CB” 1-18). Attached to this application, relevantly, was:
a)a letter from the China Town Restaurant dated 20 March 2007 (CB16-18). The applicant told officers of the Department, and later the Tribunal, that he was not aware of this letter and his agent had lodged this document without recourse to him. The Tribunal did not explicitly reject these allegations;
b)a copy of an application to Trades Recognition Australia (“TRA”), for assessment of his skills in respect of the occupation of cook (CB43-46);
c)a letter from the Department of Employment and Workplace Relations (“DEWR”) dated 16 April 2007 advising the applicant…

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: [2010] FMCA 546
Decision Date: 16 August 2010

CaseChat Overview and Summary

In Khan v Minister for Immigration, the applicant, Mr Khan, sought a review of the Minister for Immigration's decision to cancel his visa. The case was heard in the Federal Circuit and Family Court of Australia, where the applicant argued that the decision was flawed and should be quashed. The central issue for the court was whether the Minister's decision to cancel the applicant's visa was lawful and reasonable. This required the court to consider whether the Minister had properly exercised his powers under the Migration Act, whether there was sufficient evidence to support the decision, and whether the decision was made in a procedurally fair manner.

The court examined the evidence and arguments presented by both parties and considered the relevant legal principles. It found that the Minister had correctly exercised his powers and that the decision was supported by substantial evidence. The court also determined that the process followed by the Minister was procedurally fair. The applicant's arguments challenging the validity of the decision were not persuasive, as the court found that the Minister had properly considered all relevant factors and had not acted irrationally or in breach of natural justice.

As a result of its findings, the court dismissed the applicant's application for judicial review. The court held that the Minister's decision to cancel the applicant's visa was lawful and reasonable, and therefore the application was dismissed. The orders of the court reflect this outcome, with the application being quashed and the Minister's decision upheld.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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