FEDERAL COURT OF AUSTRALIA
Minister for Immigration and Border Protection v Khanna [2016] FCA 142
Appeal from: Khanna & Ors v Minister for Immigration & Anor [2015] FCCA 1971 File number: NSD 927 of 2015 Judge: REEVES J Date of judgment: 26 February 2016 Date of order: 26 February 2016 Date of replacement order: 1 March 2016 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court – where Minister’s delegate refused to grant the first respondent a student visa subclass 573.223(1) of the Migration Regulations 1994 (Cth) – where decision of the Minister’s delegate affirmed by the Migration Review Tribunal – where Federal Circuit Court judge quashed the decision of the Migration Review Tribunal – whether the Federal Circuit Court erred in finding the Tribunal’s decision had demonstrated jurisdictional error Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14
Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651; [2007] HCA 14
Craig v South Australia (1995) 184 CLR 163
Khanna v Minister for Immigration and Border Protection (2015) 298 FLR 388, [2015] FCCA 1971
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Date of hearing: 27 November 2015 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 26 Counsel for the Appellant: Mr MJ Smith Solicitor for the Appellant: Australian Government Solicitor Counsel for the First, Second and Third Respondents: Mr BM Zipser Counsel for the Fourth Respondent: The Fourth Respondent filed a submitting notice ORDERS
NSD 927 of 2015 BETWEEN: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Appellant
AND: KAMNA KHANNA
First Respondent
JAGDEEP SINGH
Second Respondent
SAHIBJOT SINGH (and another named in the Schedule)
Third Respondent
JUDGE:
REEVES J
DATE OF ORDER:
26 FEBRUARY 2016
THE COURT ORDERS THAT:
1.The orders made by the primary judge on 20 July 2015 quashing the decision of the fourth respondent and ordering that the first respondent’s application for review of the delegate’s decision be determined according to law be set aside.
2.The first respondent is to pay the appellant’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
NSD 927 of 2015 BETWEEN: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Appellant
AND: KAMNA KHANNA
First Respondent
JAGDEEP SINGH
Second Respondent
SAHIBJOT SINGH (and another named in the Schedule)
Third Respondent
JUDGE:
REEVES J
DATE OF ORDER:
1 MARCH 2016
THE COURT ORDERS BY CONSENT (IN REPLACEMENT OF ORDER 1 OF 26 FEBRUARY 2016) THAT:
1.Order 1 of the orders made on 26 February 2016 is vacated and in its place, the Court orders that:
(a) The appeal be allowed.
(b)The orders of the Federal Circuit Court made on 21 July 2015 be set aside and in their place this Court orders that the application be dismissed, with costs.
Note: Entry…
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- MIBP v Khanna [2016] FCA 142
- Case
- [2016] FCA 142
- Decision Date
CaseChat Overview and Summary
The key legal issue in this case revolves around the interpretation of the phrase "intends genuinely to stay in Australia temporarily" under clause 573.223(1) of the Migration Regulations. The Minister contends that the Federal Circuit Court misinterpreted this phrase and incorrectly assumed that Ms Khanna's wish to settle in Australia in the long term, if given the opportunity, implied she did not have an intention genuinely to stay in Australia temporarily. Additionally, the Minister argues that the Federal Circuit Court erred in concluding that the terms of clause 573.223(1) required the Tribunal to consider whether Ms Khanna intends to return to her home country at the end of the period for which the Subclass 573 visa she applied for would be valid.
The court considered the arguments put forward by the Minister and the submissions of Ms Khanna. It found that the Federal Circuit Court had not erred in its interpretation of the phrase "intends genuinely to stay in Australia temporarily". The court held that the Tribunal had indeed asked itself the wrong question in determining whether Ms Khanna was a genuine applicant for entry and stay as a student because she intends genuinely to stay in Australia temporarily. The court agreed with the Federal Circuit Court that the Tribunal had determined Ms Khanna's review application on the assumption that her wish to settle in Australia in the long term, if given the opportunity, implied she did not have an intention genuinely to stay in Australia temporarily. Furthermore, the court found that the Federal Circuit Court was correct in concluding that the terms of clause 573.223(1) required the Tribunal to consider whether Ms Khanna intends to return to her home country at the end of the period for which the Subclass 573 visa she applied for would be valid.
The final orders of the court were to set aside the orders made by the primary judge on 20 July 2015 and to order that Ms Khanna's application for review of the delegate's decision be determined according to law. Additionally, Ms Khanna was ordered to pay the appellant's costs of the appeal.
Orders
Orders of the court
1. The orders made by the primary judge on 20 July 2015 quashing the decision of the fourth respondent and ordering that the first respondent’s application for review of the delegate’s decision be determined according to law be set aside.
2. The first respondent is to pay the appellant’s costs of the appeal.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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