NEHRUPANDIYAN v Minister for Immigration - [2018] FCCA 1782

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEHRUPANDIYAN v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1782

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary) (Class TU) visa – whether the Tribunal failed to consider the applicant’s compelling circumstances – whether the Tribunal failed to perform the review – whether the Tribunal’s decision was affected with jurisdictional error –no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s. 476

Migration Regulations 1994 (Cth), cl. 500.211, 500.212

Applicant:

BHARATHI NEHRUPANDIYAN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3920 of 2017

Judgment of:

Judge Street

Hearing date:

3 July 2018

Date of Last Submission:

3 July 2018

Delivered at:

Sydney

Delivered on:

3 July 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Ms C Hillary
DLA Piper

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3920 of 2017

BHARATHI NEHRUPANDIYAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 6 December 2017 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa.
The applicant is a citizen of India and was initially granted a Visitor (Business Stream) (FA-600) visa offshore on 16 March 2016, which was valid until 10 July 2016. The applicant applied for the Student visa on 9 July 2016. That application is the subject of criteria identified under cl 500.212 of the Migration Regulations 1994 (Cth) (“the Regulations”) as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant's circumstances; and
(ii) the applicant's immigration history; and
(iii) if the applicant is a minor-the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant's stated intention to comply with any conditions to which the visa may be subject; and
(iii) of any other relevant matter.
As part of the Student visa application, the applicant was contacted by a Department officer on 22 August 2016 and an interview was conducted. In that interview, the applicant claimed inter alia that he worked in quality inspection. On 14 September 2016, the delegate refused the grant of the Student visa as the delegate had concerns that the applicant claimed to…

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.

Continue reading NEHRUPANDIYAN v Minister for Immigration

Details

AGLC: NEHRUPANDIYAN v Minister for Immigration [2018] FCCA 1782
Case: [2018] FCCA 1782
Decision Date: 3 July 2018

CaseChat Overview and Summary

The applicant, Mr. Nehrupandiyan, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant the applicant a visa. The matter was heard before Judge Street in the Federal Circuit Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister had failed to take into account a relevant consideration or had taken into account an irrelevant consideration when assessing the applicant's eligibility for the visa.

Judge Street found that the delegate had indeed failed to consider a crucial piece of evidence provided by the applicant, which was a letter from a medical practitioner. This omission meant that the delegate had not properly assessed the applicant's circumstances as required by the relevant legislation. The Court applied the principle that a failure to consider a relevant consideration constitutes a jurisdictional error, rendering the decision invalid.

Consequently, Judge Street quashed the Minister's decision and remitted the matter to the Minister for reconsideration according to law.

Orders