Pathirannahalage v Minister for Immigration - [2020] FCCA 3116

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATHIRANNAHALAGE & ORS v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 3116

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) visa – whether the Tribunal erred in failing to assess the applicant’s genuine intention to stay in Australia temporarily – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), s. 499(2A).

Migration Regulations 1994 (Cth), sch 2, cl 570.223(1), 572.223(1).

Cases cited:

Ghimire v Minister for Immigration and Border Protection [2014] FCA 899.

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR

259.

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760.

First Applicant:

JANAKA NUWAN PATHIRANA KAHANDAWA PATHIRANNAHALAGE

Second Applicant:

LEEWANI NUWANGI AMARASURIYA

Third Applicant:

NATASHA DILKI PATHIRANA KAHANDAWA PATHIRANNAHALAGE

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1911 of 2017

Judgment of:

Judge Humphreys

Hearing date:

13 November 2020

Date of Last Submission:

13 November 2020

Delivered at:

Parramatta

Delivered on:

19 November 2020

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Ms Robertson – Mills Oakley Lawyers

ORDERS

The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The first and second applicants’ to pay the first respondent’s costs fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1911 of 2017

JANAKA NUWAN PATHIRANA KAHANDAWA PATHIRANNAHALAGE

First Applicant

LEEWANI NUWANGI AMARASURIYA

Second Applicant

NATASHA DILKI PATHIRANA KAHANDAWA PATHIRANNAHALAGE

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The first applicant is a citizen of Sri Lanka. The second and third applicants’ are the first applicant’s wife and daughter. The first applicant’s daughter was born in Australia. The first applicant was granted an initial Student (Class TU subclass 573) visa offshore on 22 December 2004, valid until 17 February 2005. The first applicant arrived in Australia on 2 January 2005 and has been granted a number of further student visas and a Subclass 485 Temporary Graduate visa since that time.
On the 23 February 2016, the first applicant applied for a further Student (Subclass 570) visa. A delegate of the Minister for Immigration (“the delegate”) decided to refuse the applicants’ a further visa on 21 June 2016. The delegate was not satisfied that the first applicant met the requirements of cl 570.223(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 24 May 2017, the Tribunal affirmed the delegate’s decision not to grant the first applicant his Student (Temporary) (Class TU) visa.
The applicants’ now seek…

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 3116
Decision Date: 19 November 2020

CaseChat Overview and Summary

The applicant, Pathirannahalage, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) concerning a Student (Temporary) (Class TU) visa. The core of the dispute revolved around whether the AAT had erred in its assessment of the applicant's genuine intention to remain in Australia temporarily, as required for the visa. The matter was heard by Judge Humphreys in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the AAT had committed a jurisdictional error in its evaluation of the applicant's visa application. Specifically, the Court was required to determine if the Tribunal had failed to properly consider or assess the applicant's genuine intention to stay in Australia temporarily, which is a fundamental criterion for the grant of a Student (Temporary) (Class TU) visa.

Judge Humphreys found that no jurisdictional error had been made out. The Court's reasoning, though not detailed in the provided text, led to the conclusion that the AAT had acted within its jurisdiction and had adequately considered the relevant factors. Consequently, the application for judicial review was dismissed. The Court also ordered that the name of the first respondent be amended to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, and that the applicant pay the first respondent's costs fixed at $5,400.00.

Orders

Orders of the court

ORDERS

1. The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application is dismissed.

3. The applicant to pay the first respondent’s costs fixed in the amount of $5,400.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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