Khan v Minister for Immigration - [2019] FCCA 701

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHAN v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 701

Catchwords:
MIGRATION – Regional Employer Nomination (Class RN) (subclass 187) (Regional Sponsored Migration Scheme) Visa Application – review of a decision of the Administrative Appeals Tribunal – Tribunal hearing by telephone – no adjournment granted – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth), ss.338(9), 360A, 366

Migration Regulations 1994 (Cth), regs.4.02(4)(e), 4.10, sch.2, cl.187.233

Cases cited:

AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193
Brar v Minister for Immigration & Anor (No 2) (2017) 322 FLR 81

CAL15 v Minister for Immigration and Border Protection[2016] FCA 1344

CGX16 v Minister for Immigration & Border Protection & Anor [2018] FCCA 2819

Craig v State of South Australia (1995) 39 ALD 193

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Minister for Immigration & Border Protection v Dhillon (2014) 227 FCR 525
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration v Singh (2014) 231 FCR 437
Minister for Immigration v SZMDS (2010) 240 CLR 611

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

MZAHK v Minister for Immigration and Border Protection [2017] FCAFC 87

Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491

SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 83 ALD 545
Siddique v Minister for Immigration and Border Protection (2014) 144 ALD 328

Singh v Minister for Immigration & Anor [2018] FCCA 1215

Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712
SZNNE v Minister for Immigration & Citizenship [2010] FCA 194
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
SZTTW v Minister for Immigration and Border Protection [2014] FCA 837

Applicant:

IFTIKHAR KHAN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2361 of 2017

Judgment of:

Judge Kendall

Hearing date:

28 February 2019

Date of Last Submission:

28 February 2019

Delivered at:

Perth

Delivered on:

28 February 2019

REPRESENTATION

The Applicant:

In person

Counsel for the First Respondent:

Mr D. Kiel

The Second Respondent::

Submitting appearance, save as to costs

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The applicant’s application is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

MLG 2361 of 2017

IFTIKHAR KHAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

Introduction

Mr Khan seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 18 October 2017.
The Tribunal’s decision affirmed a decision of a delegate…

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: [2019] FCCA 701
Decision Date: 28 February 2019

CaseChat Overview and Summary

Khan (the applicant) sought judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal) concerning his application for a Regional Employer Nomination (Class RN) (subclass 187) visa. The applicant contended that the Tribunal had committed a jurisdictional error by refusing to grant an adjournment of his hearing, which was conducted by telephone.

The central legal issue before the Federal Court was whether the Tribunal's refusal to grant an adjournment constituted a jurisdictional error. This required the Court to consider the Tribunal's obligations regarding procedural fairness, particularly in the context of a telephone hearing and the applicant's request for an adjournment.

Justice Kendall found that the Tribunal had not committed a jurisdictional error. The Court reasoned that the Tribunal had adequately considered the applicant's request for an adjournment and had provided sufficient reasons for its refusal. The Tribunal had balanced the applicant's stated reasons for seeking an adjournment against the need for efficient case management and had determined that proceeding with the telephone hearing was appropriate in the circumstances. The applicant's application was therefore dismissed.

Orders