MEHDI v Minister for Immigration - [2020] FCCA 1121

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEHDI v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1121

Catchwords:
MIGRATION – Student visa – decision to cancel student visa – whether non-genuine student – evidentiary burden – insufficient evidence – whether decision affected by error – applicable principles – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 116, 474,

Migration Regulations 1994 (Cth), reg.2.43.

Cases cited:

Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and Border Protection v BJC16 [2017] FCAFC 114
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574

Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant:

JAMAL MEHDI

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 1989 of 2015

Judgment of:

Judge A. Kelly

Hearing date:

8 May 2020

Date of Last Submission:

30 April 2020

Delivered at:

Melbourne

Delivered on:

12 May 2020

REPRESENTATION

Counsel for the Applicant:

In person

Solicitor advocate for the First Respondents:

Ms Stone

Solicitors for the Respondents:

Mills Oakley

ORDERS

By consent, pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
The name of the first respondent be amended in the title of the proceeding to: “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application dated 1 September 2015 be dismissed.
The applicant pay the first respondent’s costs as agreed or assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1989 of 2015

JAMAL MEHDI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed on 1 September 2015 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 13 August 2015 affirming a decision of a delegate of the first respondent (Minister) to cancel the applicant’s subclass 573 Student visa.
I have concluded that the application should be refused. In summary, the Tribunal’s decision was readily open and from my examination of the materials comprising the court book, it is not tainted by jurisdictional error. There is no substance in the applicant’s grounds of review.

Background

The applicant, a male citizen of Pakistan aged 27 years, arrived in Australia on 12 June 2013 having been granted a subclass 573 Student (Higher Education Sector) visa expiring 10 April 2017.
At the time of entry into Australia, the applicant was enrolled in a Bachelor of Business which he did not undertake. Instead, the applicant pursued study in a series of English language courses which he completed on 14 May 2014. The applicant did not complete any study thereafter, and his enrolment in the Bachelor of Business…

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 1121
Decision Date: 12 May 2020

CaseChat Overview and Summary

In *Mehdi v Minister for Immigration*, the applicant, Mr Mehdi, sought judicial review of a decision by the Minister for Immigration to refuse his application for a protection visa. The dispute centred on whether the Minister had adequately considered the risk of harm Mr Mehdi might face if returned to his country of origin. The matter came before Judge A. Kelly of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision-making process, in assessing Mr Mehdi's claims for protection, had failed to take into account relevant considerations or had taken into account irrelevant considerations. Specifically, the Court was asked to determine if the Minister had properly assessed the risk of persecution or harm Mr Mehdi might suffer based on his stated reasons for seeking protection.

Judge Kelly's reasoning focused on the principles of administrative law, particularly the requirement for decision-makers to undertake a comprehensive and balanced assessment of all relevant evidence. The Court examined the Minister's delegate's assessment of Mr Mehdi's claims, considering whether the delegate had given due weight to the subjective fears expressed by the applicant and whether the objective country information had been properly applied to those fears. The Court applied the established legal principles regarding the assessment of protection claims under the *Migration Act 1958* (Cth) and relevant case law concerning the duty to consider all relevant matters.

The Court found that the Minister's delegate had failed to adequately consider certain aspects of Mr Mehdi's claims and had therefore made an error of law. Consequently, the decision to refuse the protection visa was set aside, and the matter was remitted to the Minister for redetermination according to law.

Orders