Narendran v Minister for Immigration - [2019] FCCA 1617

FEDERAL CIRCUIT COURT OF AUSTRALIA

NARENDRAN v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1617

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Student visa applied for onshore – necessity for “exceptional reasons” to be established – application for judicial review of decision of Administrative Appeals Tribunal – applicant did not claim or assert any “exceptional reasons” at Tribunal hearing – Administrative Appeals Tribunal did not find that the applicant satisfied the “exceptional reasons” test – applicant fails to establish jurisdictional error affecting the decision of the Administrative Appeals Tribunal – application dismissed.

Legislation:

Corporations Law, s.597

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:

Abebe v The Commonwealth (1999) 197 CLR 510

ABT16 v Minister for Home Affairs [2019] FCA 836

An v Minister for Immigration (2007) 160 FCR 480

Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1
Mercantile Mutual Life Insurance Co Limited v Australian Securities Commission [1993] 40 FCR 409

Minister for Immigration & Multicultural Affairs v SZFDE (2006) 154 FCR 365

Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553

Pokharel v Minister for Immigration and Border Protection [2016] FCAFC 34

Shashidar v Minister for Immigration & Border Protection [2017] FCA 253

SZNVX v Minister for Immigration & Citizenship (2009) 112 ALD 475

Applicant:

SARAVANA KUMAR ANGAPPA NARENDRAN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2571 of 2017

Judgment of:

Judge Dowdy

Hearing date:

6 June 2018

Date of Last Submission:

20 June 2018

Delivered at:

Sydney

Delivered on:

13 June 2019

REPRESENTATION

The Applicant appeared
in person.

Counsel for the First Respondent:

Mr J. McGovern

Solicitors for the First Respondent:

Clayton Utz

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 14 August 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2571 of 2017

SARAVANA KUMAR ANGAPPA NARENDRAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant is a male citizen of India aged 36 years, having been born on 25 February 1983.
By Application filed in this Court on 14 August 2017, he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 11 July 2017, which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister of Immigration and Border Protection (Minister) dated 26 July 2016, refusing to grant to him a Student (Temporary) (Class TU) (Subclass 572) visa (Student visa).

Background

The Applicant arrived in Australia on 21 January 2016 on a Visitor (Class FA) (Subclass 600) visa (Visitor visa). He then applied through his registered migration agent for the Student visa onshore on 17 May 2016.
Attached to his Student visa application form was a Letter of Offer from the Australian…

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: [2019] FCCA 1617
Decision Date: 13 June 2019

CaseChat Overview and Summary

In *Narendran v Minister for Immigration*, the applicant, Mr Narendran, 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 applicant's claims of persecution in his home country.

The primary legal issue before Dowdy J was whether the Minister's delegate had failed to properly consider the applicant's claims of past persecution and the real chance of future persecution, as required by the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). Specifically, the court had to determine if the delegate's assessment of the evidence was reasonable and whether the delegate had applied the correct legal test for establishing a real chance of future persecution.

Dowdy J found that the delegate had failed to adequately consider the applicant's evidence regarding past persecution and had applied an incorrect legal standard when assessing the risk of future persecution. The delegate's reasoning was found to be illogical and not supported by the evidence presented. Consequently, the delegate's decision was set aside. The matter was remitted to the Minister for redetermination according to law.

Orders