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Khan v Minister for Immigration & Another

Khan v Minister for Immigration & Another

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Case Copied 13 March 2019 49 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

KHAN v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 565

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal – refusal of student visa – whether Tribunal failed to weigh Applicant’s circumstances as a whole – whether legal unreasonableness.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), cl.572.223 in Schedule 2

Cases cited:

Applicant:

AFROZE MOHAMMED KHAN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1136 of 2016

Judgment of:

Judge Barnes

Hearing date:

5 February 2018

Date of Last Submission:

13 February 2018

Delivered at:

Sydney

Delivered on:

13 March 2019

REPRESENTATION

Solicitors for the Applicant:

M S Nair & Co

Counsel for the Respondents:

Mr Swan

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1136 of 2016

AFROZE MOHAMMED KHAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 18 April 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicant a Student (Temporary) (Subclass 572) visa.
The Applicant, a citizen of India, applied for the visa in question on 10 June 2015. At the time of the application, he relied on enrolments in an Advanced Diploma of Network Security and an Advanced Diploma of Accounting. It appears that the first of these was a course he was undertaking and that the second was to start on 20 July 2015.
One of the applicable criteria for a Subclass 572 visa was in cl.572.223 in Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) which, at the time…

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 565
Decision Date: 13 March 2019

CaseChat Overview and Summary

Khan applied to the Federal Circuit and Family Court of Australia for a review of a decision by the Administrative Appeals Tribunal (AAT) to refuse his application for a student visa. The Minister for Immigration was the second respondent.

The central issues before the Court were whether the AAT had failed to consider the applicant's circumstances as a whole when making its decision, and whether the AAT's decision was legally unreasonable.

Judge Barnes found that the AAT had not failed to weigh the applicant's circumstances as a whole. The Court held that the AAT had considered all the relevant factors presented by the applicant, including his personal circumstances and his reasons for wishing to study in Australia. The Court further held that the AAT's decision was not legally unreasonable, as it was open to the Tribunal on the evidence before it to reach the conclusion it did. The application for review was dismissed.

Orders