Rai v Minister for Immigration - [2020] FCCA 2265

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAI v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2265

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – Tribunal not satisfied that the visa applicant was a genuine temporary entrant for study – whether the Tribunal constructively failed to exercise its review jurisdiction or acted unreasonably considered – other errors alleged – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.65, 357A, 359, 359B, 359C, 360, 363, 363A, 379A, 379C, 379G, 499

Migration Regulations 1994 (Cth)

Cases cited:

ARG15 v Minister for Immigration (2016) 250 FCR 109

CQG15 v Minister for Immigration (2016) 253 FCR 496

DAO v Minister for Immigration (2018) 258 FCR 175

Hasran v Minister for Immigration (2010) 183 FCR 41

Hossain v Minister for Immigration (2018) 264 CLR 123

Kumar v Minister for Immigration [2020] FCAFC 16

Minister for Immigration v Saba Bros Tiling Pty Ltd [2011] FCA 233

Minister for Immigration v Singh(2014) 231 FCR 437

Minister for Immigration v SZFML & Anor (2006) 154 FCR 572

Minister for Immigration v SZMDS(2010) 240 CLR 611

Minister for Immigration v SZVFW [2018] HCA 30

NBBL v Minister for Immigration (2006) 152 FCR 592

Nguyen v Minister for Immigration & Anor [2010] FMCA 726

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

Singh v Minister for Home Affairs(2019) 267 FCR 200

Uelese v Minister for Immigration (2015) 256 CLR 203

Vo v Minister for Home Affairs (2019) 269 FCR 566

Applicant:

SHARAN RAI

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2997 of 2019

Judgment of:

Judge Driver

Hearing date:

17 August 2020

Delivered at:

Sydney

Delivered on:

8 September 2020

REPRESENTATION

Counsel for the Applicant:

Ms R Lahoud by telephone

Counsel for the Respondents:

Ms K Hooper by telephone

Solicitors for the Respondents:

Mills Oakley

ORDERS

The application as amended on 3 August 2020 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2997 of 2019

SHARAN RAI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant, Mr Rai, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 16 October 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Rai a temporary student visa.
The following statement of background facts is derived from initial written submissions filed on behalf of the Minister on 3 July 2020.
Mr Rai is a citizen of Nepal who arrived in Australia on 7 March 2009 as the holder of a student (subclass 572) visa.[1]
[1] Court Book (CB) 34
On 13 March 2017, Mr Rai lodged an application for a student (subclass 500) visa[2] to study a Diploma of Leadership and Management at Australian Ideal College[3] and provided a copy of the following documents in support of his…

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 2265
Decision Date: 8 September 2020

CaseChat Overview and Summary

Rai (the applicant) sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed the refusal of her application for a student visa. The Minister for Immigration (the respondent) was the opposing party. The core of the dispute concerned whether the Tribunal had properly exercised its review jurisdiction when it found that the applicant was not a genuine temporary entrant for the purpose of studying in Australia.

The primary legal issue before the Federal Court was whether the Tribunal had constructively failed to exercise its review jurisdiction or acted unreasonably in its assessment of the applicant's genuine temporary entrant status. The applicant also alleged other errors in the Tribunal's decision-making process.

Justice Driver found that the Tribunal had not committed any jurisdictional error. His Honour reasoned that the Tribunal had considered the relevant criteria for a genuine temporary entrant and had provided reasons for its conclusion that the applicant had not satisfied those criteria. The Tribunal's assessment, even if it could be characterised as harsh or arguably incorrect on the facts, did not amount to a failure to exercise its jurisdiction or an unreasonable exercise of it in a legal sense. The applicant's other alleged errors were also dismissed.

The application for judicial review was therefore dismissed.

Orders