Naveed v Minister for Immigration - [2018] FCCA 2811

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAVEED v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2811

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.5

Migration Regulations 1994 (Cth)

Cases cited:

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Gill v Minister for Immigration (2016) 248 FCR 398; [2016] FCAFC 142

Maharjan v Minister for Immigration [2017] FCAFC 213

Minister for Immigration v SZLIX (2008) 245 ALR 501; [2008] FCAFC 17

Trivedi v Minister for Immigration (2014) 220 FCR 169; [2014] FCAFC 42

Singh v Minister for Immigration (2016) 247 FCR 554; [2010] FCAFC 141

SZFDE v Minister for Immigration (2007) 232 CLR 189; [2007] HCA 35

Applicant:

TAHIR NAVEED

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3505 of 2017

Judgment of:

Judge Driver

Hearing date:

27 September 2018

Delivered at:

Sydney

Delivered on:

27 September 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr J Pinder of Minter Ellison

INTERLOCUTORY ORDERS

Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3505 of 2017

TAHIR NAVEED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant, Mr Naveed, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 19 October 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Naveed a temporary student visa.
Background facts relating to Mr Naveed’s visa application and the decision of the Tribunal on it are set out in the Minister’s outline of submissions filed on 20 September 2018.
On 29 June 2016, Mr Naveed lodged an application for a student visa.[1] On the same date or shortly thereafter he lodged a “notification of incorrect answer(s)” to state that he mistakenly marked his relationship status as “de facto” when it was not.[2]
[1] CB1–18
[2] CB19
On 11 July 2016, the Minister's Department (Department) wrote to Mr Naveed to request more information about his satisfaction of the genuine temporary entrant criterion.[3]
[3] CB23–31
On 1 August 2016, Mr Naveed responded to the Department's request and provided information,[4] including, relevantly, a letter from the Bank of Punjab dated 11 July 2016 stipulating that the bank had extended a line of credit to Mr Naveed (the bank letter).[5]
[4] CB32–45
[5] CB40
On 27 September 2016, the Department wrote to Mr Naveed to invite him to comment on information, being that it had conducted an investigation into the bank letter and that the…

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: [2018] FCCA 2811
Decision Date: 27 September 2018

CaseChat Overview and Summary

Naveed (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse his application for a student visa. The matter came before Driver J of the Federal Court of Australia.

The primary legal issue before the Court was whether the Administrative Appeals Tribunal (AAT) had committed a jurisdictional error in its interlocutory dismissal of a show cause application made by the applicant. The applicant contended that this dismissal was unlawful and sought to have it set aside.

Driver J found that the applicant had not demonstrated an arguable case of jurisdictional error. The Court reasoned that the AAT's decision to dismiss the show cause application was a procedural step within the broader review process and did not, in itself, constitute a jurisdictional error that would warrant intervention by the Federal Court at that interlocutory stage. The applicant had failed to establish that the AAT had acted outside its powers or failed to fulfil a legal obligation in dismissing the show cause notice.

Consequently, Driver J ordered the dismissal of the application for judicial review.

Orders