Owino v Minister for Immigration - [2020] FCCA 3004

FEDERAL CIRCUIT COURT OF AUSTRALIA

OWINO & ORS v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 3004

Catchwords:
MIGRATION – Graduate visa – decision of Administrative Appeals Tribunal – where the applicant took English Language Test after applying for visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), cl.485.212

Cases cited:

Bala v Minister for Immigration & Border Protection [2019] FCA 600

Craig v State of South Australia (1995) 184 CLR 163
Kumar v Minister for Immigration & Border Protection [2018] FCA 140
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Thlork vMinister for Immigration & Border Protection [2019] FCA 333

First Applicant:

FRANCIS OMONDI OWINO

Second Applicant:

SHARON AKINYI AKOTH

Third Applicant:

DEVAUGHN THOMAS OWINO

Fourth Applicant:

SHEM JOSPEH OCHIENG

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 227 of 2020

Judgment of:

Judge Kendall

Hearing date:

5 November2020

Date of Last Submission:

5 November 2020

Delivered at:

Perth

Delivered on:

9 November 2020

REPRESENTATION

Counsel for the Applicants:

In person

Counsel for the First Respondent:

Mr J Papalia

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 227 of 2020

FRANCIS OMONDI OWINO

First Applicant

SHARON AKINYI AKOTH

Second Applicant

DEVAUGHN THOMAS OWINO

Third Applicant

SHEM JOSPEH OCHIENG

Fourth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicants are citizens of Kenya. The first and second applicant are husband and wife. The third and fourth applicants are their children. They arrived in Australia in May 2015 on a student visa (Court Book (“CB”) 47-48).
On 30 January 2019, the applicants applied for a Temporary Graduate (Graduate Work) (subclass 485) visa (the “visa”) (CB 1-20). The first applicant was the primary applicant and the remaining applicants were members of the family unit.
On 3 April 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visa (CB 25-39). The delegate found that the first applicant did not meet cl.485.212 of the Migration Regulations 1994 (Cth) (the “Regulations”) as he had not provided evidence that he had undertaken (and achieved the requisite results for) an English Language Test in the 36 months prior to lodging the visa application. As the first applicant did not meet the primary criteria, the remaining applicants were also denied the visa.
On 18 April 2019, the applicants applied…

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: [2020] FCCA 3004
Decision Date: 9 November 2020

CaseChat Overview and Summary

In *Owino v Minister for Immigration*, the applicant sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) concerning their application for a graduate visa. The core of the dispute revolved around the timing of the applicant's English language test in relation to their visa application.

The primary legal issue before the Federal Court was whether the AAT had committed a jurisdictional error in its assessment of the applicant's eligibility for the graduate visa. Specifically, the court had to determine if the applicant's submission of their English Language Test results after lodging the visa application constituted a failure to meet a mandatory requirement, thereby vitiating the AAT's decision.

Justice Kendall found that there was no jurisdictional error. The court reasoned that the relevant legislative framework did not mandate that the English Language Test be completed prior to the lodgement of the visa application. The AAT had correctly applied the law in considering the application, and the timing of the test did not render the decision unlawful. Consequently, the application for judicial review was dismissed.

Orders