Mahato v Minister for Immigration - [2020] FCCA 1116

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAHATO v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1116

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – applicant found not to be a genuine temporary entrant for study – numerous jurisdictional errors alleged – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.357A, 360, 366A, 499, 500

Migration Regulations 1994 (Cth)

Cases cited:

Abebe v Commonwealth (1999) 197 CLR 510

Craig v State of South Australia (1995) 184 CLR 163

DAO16 v Minister for Immigration (2018) 258 FCR 175

Kumar v Minister for Immigration [2020] FCAFC 16

Minister for Immigration v FOE17 [2020] FCAFC 73

Minister for Immigration v Lay Lat (2006) 151 FCR 214

Minister for Immigration v SZIAI (2009) 259 ALR 429

Minister for Immigration v SZMDS & Anor (2010) 240 CLR 611

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Prasad v Minister for Immigration (1985) 6 FCR 155

Re Minister for Immigration; Ex parte Applicant S154/2002 (2003) 201 ALR 437

SZBEL v Minister for Immigration (2006) 228 CLR 152

Applicant:

SMRITI MAHATO

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1839 of 2018

Judgment of:

Judge Driver

Hearing date:

8 May 2020

Delivered at:

Sydney

Delivered on:

28 May 2020

REPRESENTATION

Solicitors for the Applicant:

Mr H Bhatta of Residency Legal

Solicitors for the Respondents:

Ms A Zinn of Mills Oakley

ORDERS

The application as amended on 16 January 2020 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1839 of 2018

SMRITI MAHATO

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant, Ms Mahato, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 June 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Ms Mahato a temporary student visa.
The following statement of background facts is derived from the submissions of the parties.
Ms Mahato is a citizen of Nepal who arrived in Australia on 17 May 2009 as the holder of a student visa. She was subsequently granted a further student (subclass 572) visa and a graduate (subclass 485) visa.[1] Since arriving in Australia, Ms Mahato has completed courses in business, management, accounting and translating.
[1] Court Book (CB) 35
On 18 July 2016, Ms Mahato applied for a student (subclass 500) visa on the basis of her enrolment in a Certificate IV and Diploma in Information Technology Networking.[2]
[2] CB 1-23
On 27 September 2016, the delegate refused to grant Ms Mahato a student visa.[3] The delegate was not satisfied that Ms Mahato was a genuine applicant for entry and stay as a student as required by clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The delegate retained “serious concerns” about Ms Mahato’s true intentions in Australia and found…

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: [2020] FCCA 1116
Decision Date: 28 May 2020

CaseChat Overview and Summary

Mahato (the applicant) sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the Minister for Immigration's refusal to grant the applicant a student visa. The AAT had found that the applicant was not a genuine temporary entrant for the purpose of study.

The applicant alleged that the AAT had committed numerous jurisdictional errors in its review of the visa refusal. The central legal issue before the court was whether the AAT's decision contained any jurisdictional errors.

Judge Driver found that the AAT had not made any jurisdictional errors. The court's reasoning focused on the AAT's assessment of the applicant's genuineness as a temporary entrant, which involved considering factors such as the applicant's circumstances in their home country, their proposed course of study, and their intentions upon completion of the course. The court determined that the AAT had properly applied the relevant migration law and had not acted outside its jurisdiction.

The application for judicial review was dismissed.

Orders