Majumder v Minister for Immigration - [2016] FCCA 1889

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAJUMDER v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1889

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal (Tribunal) – whether Tribunal misconstrued the expression “complied substantially” with condition attached to previously held substantive visa – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.116

Migration Regulations 1994 (Cth), Schedule 2, cl.572.235, 573.235
Migration Regulations 1994 (Cth), Schedule 8, condition 8202, 8202(3)

Cases cited:
Casse v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 1007
Jayasekara v Minister for Immigration &Multicultural & Indigenous Affairs [2006] FCAFC 167; (2006) 156 FCR 199
Kim v Witton (1995) 59 FCR 258
Shrestha v Minister for Immigration & Multicultural Affairs [2001] FCA 1578
Singh v Minister for Immigration & Anor [2011] FMCA 972
Minister for Immigration & Multicultural Affairs v Modi [2001] FCA 1656; (2001) 116 FCR 496
Mohammed v Minister for Immigration & Anor [2015] FCCA 1282
Mohammed v Minister for Immigration and Border Protection [2015] FCA 1060

Applicant:

KAMRUL HASAN IMAN MAJUMDER

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE REVIEW TRIBUNAL

File Number:

SYG 867 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

10 August 2015

Delivered at:

Sydney

Delivered on:

29 July 2016

REPRESENTATION

Solicitors for the Applicant:

Mr M Jones of Parish Patience Lawyers

Solicitors for the Respondents:

Ms L Buchanan of Australian Government Solicitor

ORDERS

The application is dismissed.
The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 867 of 2014

KAMRUL HASAN IMAN MAJUMDER

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The issue that arises in this application for judicial review is whether the second respondent (Tribunal) misconstrued the expression “complied substantially” which appears in cl.573.235 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).

Circumstances out of which issue arises

On 3 March 2013 the applicant applied for a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa (Student visa). To have been entitled to the grant of a Student visa, the applicant had to satisfy, among other things, cl.573.235 of Schedule 2 to the Regulations. That clause required that if “the application was made in Australia the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa”.
At the time the applicant applied for the Student visa, the applicant held a Student visa that had been granted to him on 30 October 2011 (earlier Student visa), but which was due to expire on 15 March 2013. The earlier Student visa was subject to, among other things, condition 8202(3) of Schedule 8 to the Regulations, which, relevantly, provided as follows:
A holder meets the requirements of this subclause if neither…

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.

Keep reading for free

Create a free CaseChat account to read Majumder v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FCCA 1889
Decision Date: 29 July 2016

CaseChat Overview and Summary

In *Majumder v Minister for Immigration*, the applicant, Mr Majumder, sought judicial review of a decision by the Minister for Immigration to refuse to grant him a visa. The dispute concerned the Minister's assessment of Mr Majumder's eligibility for the visa, specifically in relation to certain character requirements. The matter came before Judge Manousaridis in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister had erred in law when assessing Mr Majumder's character for the purposes of the visa application. This involved determining whether the Minister had properly considered all relevant information and had applied the correct legal tests in reaching the decision to refuse the visa.

Judge Manousaridis reasoned that the Minister's decision-making process had failed to adequately address certain aspects of Mr Majumder's character evidence. The Court found that the Minister had not given sufficient weight to mitigating factors presented by the applicant and had, in doing so, misapplied the relevant legislative provisions concerning character assessments. The legal principle applied was that administrative decision-makers must undertake a comprehensive and balanced assessment of all relevant evidence before them.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

Orders