Mallik v Minister for Immigration - [2013] FCCA 1134

FEDERAL CIRCUIT COURT OF AUSTRALIA

MALLIK v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1134

Catchwords:
MIGRATION – Judicial review – Migration Review Tribunal – student visa – whether applicant enrolled in a course of study at time of Migration Review Tribunal decision – whether Migration Review Tribunal had discharged duty at time of applicant’s advice of conditional offer of admission.

PRACTICE AND PROCEDURE – Whether Migration Review Tribunal had discharged duty.

Legislation:

Migration Act 1958 (Cth), ss.368A(1), 379A(1) and (4), 379G

Migration Regulations 1994 (Cth), reg.1.40A, Schedule 2, cls.570, 571, 572, 573, 574.231, 575, 576, 580

Minister for Immigration & Citizenship v SZLIX & Anor (2008) 245 ALR 501; [2008] FCAFC 17
Minister for Immigration & Citizenship v SZQOY & Anor (2012) 206 FCR 25, [2012] FCAFC 131
Semunigus v The Minister for Immigration & Multicultural Affairs [1999] FCA 422
Semunigus v The Minister for Immigration & Multicultural Affairs (2000) 96 FCR 533; [2000] FCA 240
SZFDE & Ors v Minister for Immigration & Citizenship & Anor (2007) 232 CLR 189; [2007] HCA 35
SZQOY v Minister for Immigration & Citizenship & Anor (2012) 263 FLR 36; [2012] FMCA 289
SZQQC v Minister for Immigration & Citizenship & Anor (2012) 263 FLR 392; [2012] FMCA 410

Bryan A Garner, A Dictionary of Modern Legal Usage (2^nd Edn) (New York: Oxford University Press, 1995)
M Woodley (Ed), Osborn’s Concise Law Dictionary (Tenth Edn) (London: Sweet & Maxwell, 2005)
Style Manual for Authors, Editors and Printers (6^th Edn) (Singapore: John Wiley & Sons Australia Ltd: 2005)

Applicant:

REZAON MALLIK

First Respondent:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

PEG 28 of 2013

Judgment of:

Judge Lucev

Hearing date:

19 August 2013

Date of Last Submission:

19 August 2013

Delivered at:

Perth

Delivered on:

22 August 2013

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondents:

Mr M Smith

Solicitors for the Respondents:

Sparke Helmore

ORDERS

That the name of the first respondent be amended to read “Minister for Immigration, Multicultural Affairs & Citizenship”.
That the application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PERTH

PEG 28 of 2013

REZAON MALLIK

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

By application filed on 21 February 2013, the applicant, Mr Rezaon Mallik,[1] seeks orders in the nature of certiorari and mandamus in relation to a decision of the second respondent, the Migration Review Tribunal[2] dated 18 January 2013,[3] in which the Tribunal affirmed a decision of a delegate[4] of the first respondent[5] not to grant Mr Mallik a student visa.
[1] “Mr Mallik”.
[2] “Tribunal”.
[3] Court Book (“CB”) 126 (“Tribunal Decision”).
[4] CB 53-58 (“Delegate’s Decision” and “Delegate” respectively).
[5] “Minister”.
In order to obtain a student visa it was necessary for Mr Mallik to demonstrate that, at the time of the Tribunal Decision, he was enrolled in, or had a current offer…

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: [2013] FCCA 1134
Decision Date: 22 August 2013

CaseChat Overview and Summary

In *Mallik v Minister for Immigration*, the applicant sought judicial review of a decision made by the Migration Review Tribunal (MRT). The dispute concerned the applicant's student visa application and whether the MRT had properly discharged its duties in considering the applicant's circumstances at the time of its decision.

The primary legal issues before the court were whether the applicant was enrolled in a course of study at the time the MRT made its decision, and whether the MRT had fulfilled its duty to the applicant at the point the applicant provided advice regarding a conditional offer of admission.

Judge Lucev considered the timing of the applicant's enrolment and the MRT's obligations. The court reasoned that the MRT's duty extended to considering the applicant's circumstances as they stood at the time of the MRT's decision. The court found that the applicant's enrolment status was a crucial factor in the MRT's assessment, and the MRT was required to have regard to this information when making its determination. The court applied principles of administrative law concerning the duty of tribunals to act fairly and to consider all relevant information before them.

The court found that the MRT had failed to properly discharge its duty in this regard. Consequently, the MRT's decision was set aside.

Orders