MFULA v Minister for Immigration - [2016] FCCA 161

FEDERAL CIRCUIT COURT OF AUSTRALIA

MFULA v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 161

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Student Temporary (Class TU) visa – whether the applicant voluntarily discontinued his studies – whether the Tribunal failed to properly invite applicant to respond to information – whether the Tribunal failed to carry out a statutory obligation – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.354, 357A, 359A, 359AA, 359B, 424A, 476, 477

Migration Regulations 1996 cl. 573.225, 573.223, Schedule 2

SZEPZ v Minister for Immigration & Multicultural Affairs (2006) 159 FCR 291
MZABP v Minister for Immigration & Border Protection [2015] FCA 1391

Applicant:

GEORGE MFULA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2455 of 2015

Judgment of:

Judge Street

Hearing date:

2 February 2016

Date of Last Submission:

2 February 2016

Delivered at:

Sydney

Delivered on:

2 February 2016

REPRESENTATION

Solicitors for the Applicant:

Mr R Turner
Turner Coulson Immigration Lawyers

Counsel for the First Respondent:

Ms A Douglas-Baker

Solicitors for the First Respondent:

DLA Piper

ORDERS

The application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2430 of 2015

GEORGE MFULA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court's jurisdiction under s.476 of the Migration Act 1958 (Cth) in relation to the decision of the Tribunal made on 23 July 2015 affirming the decision of the delegate not to grant the applicant a student temporary class TU visa.
The applicant arrived in Australia in February 2005 as the holder of a subclass 573 student visa. Since then, the applicant has either held a student visa or associated bridging visas. The applicant's most recent student visa, a subclass 572, expired on 4 December 2013. The applicant has remained continuously in Australia with the exception of a two-week period during which he went for a holiday to Sri Lanka. The applicant is from Zambia and has not returned to Zambia.
Since arriving in Australia, the applicant has completed a number of courses of study. The applicant applied to the Department for the student temporary class TU visa on 3 December 2013 which the delegate refused on 7 March 2014. The delegate refused to grant the visa because the applicant did not comply with requirements of cl.573.225 and cl.573.223(2)(a) of schedule 2 of the Migration Regulations 1996. That decision of the delegate was the subject of a review by a differently constituted Tribunal on 7 October 2014 (the first Tribunal). The decision of the first Tribunal was the subject of orders made by consent on 19 February 2015 remitting the matter back to a differently constituted Tribunal.
The decision of the first Tribunal did, however, set out information provided by the applicant in…

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: [2016] FCCA 161
Decision Date: 2 February 2016

CaseChat Overview and Summary

MFULA v Minister for Immigration concerned an application for judicial review of a decision by the Minister for Immigration to refuse to grant the applicant a protection visa. The applicant, Mr. Mfula, had arrived in Australia and sought protection on the basis that he feared persecution in his home country. The Minister had refused his application, and Mr. Mfula sought to challenge this decision in the Federal Court.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was asked to consider whether the delegate of the Minister had failed to properly consider all the relevant information before making the decision, and whether the delegate had applied the correct legal test in assessing Mr. Mfula's claims for protection.

Judge Street found that the delegate had failed to properly consider certain key aspects of Mr. Mfula's evidence, which were central to his claims of persecution. The Court held that this failure amounted to a jurisdictional error, as the delegate had not undertaken the comprehensive assessment required by the Migration Act 1958 (Cth) and the relevant regulations. The legal principle applied was that a failure to consider material evidence can vitiate an administrative decision.

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

Orders