RAVINDER v Minister for Immigration - [2018] FCCA 803

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAVINDER v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 803

Catchwords:
MIGRATION – Whether the Tribunal considered the criteria that applicant was required to satisfy under the Migration Regulations 1994 (Cth) (“the Regulations”) for a subclass 573 Higher Education Sector visa when deciding to cancel applicant’s visa under s.116 of the Migration Act 1958 (Cth) (“the Act”) – whether the Tribunal understood and considered applicant’s claims when deciding to exercise its discretion under s.116 of the Act – held the Tribunal failed to exercise its statutory task by not considering both cls.573.223(1A) and 573.231 of sch.2 to the Regulations with the consequence that the Tribunal engaged in jurisdictional error – held Tribunal understood and considered applicant’s claims and no jurisdictional error arose – writs issued.

Legislation:

Migration Act 1958 (Cth), s.116

Migration Regulations 1994 (Cth), reg.1.40A, sch.2 cls.573.2, 573.6, 573.22, 573.111, 573.223, 573.231, 573.611, sch.8 cl.8516

Cases cited:

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
MZZQI v Minister for Immigration & Anor [2015] FCCA 2177
Singh v Minister for Immigration & Anor [2017] FCCA 1008
Singh v Minister for Immigration and Border Protection [2018] FCA 29
Singh v Minister for Immigration and Border Protection [2016] FCA 611
Shrestha v Minister for Immigration & Anor [2017] FCCA 1875
WZAQU v Minister for Immigration and Citizenship [2013] FCA 327; (2013) 140 ALD 612

Applicant:

RAVINDER RAVINDER

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1446 of 2015

Judgment of:

Judge Jones

Hearing date:

18 October 2017

Date of Last Submission:

18 October 2017

Delivered at:

Melbourne

Delivered on:

6 April 2018

REPRESENTATION

Counsel for the Applicant:

Mr Solomon-Bridge

Solicitors for the Applicant:

Carina Ford Immigration Lawyers

Counsel for the Respondents:

Mr Brown of Australian Government Solicitor

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 3 June 2015.
A writ of mandamus issue remitting the matter to the Second Respondent and requiring it to determine according to law the application made to it by the Applicant for review of the delegate of the First Respondent’s decision.
The First Respondent pay the Applicant’s costs in a fixed amount.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1446 of 2015

RAVINDER RAVINDER

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This decision concerns an application for judicial review of the decision of the Second Respondent (“the Tribunal”) dated 3 June 2015, affirming a decision of a delegate of the First Respondent (“the Minister”) dated 9 December 2014 to cancel the Applicant’s Subclass 573 Higher Education Sector visa (“the visa”) under s.116 of the Migration Act 1958 (Cth) (“the Act”).
The amended grounds of judicial review (set out in full below at [27] and [69]):
a)impugn the Tribunal’s satisfaction that a ground existed under…

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 803
Decision Date: 6 April 2018

CaseChat Overview and Summary

In *Ravinder v Minister for Immigration*, the applicant, Ravinder, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant Ravinder a visa. The matter was heard in the Federal Court of Australia.

The primary 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 Minister had failed to take into account a relevant consideration or had taken into account an irrelevant consideration when making the decision.

Judge Jones reasoned that the Minister's delegate, in assessing Ravinder's application, had failed to adequately consider the applicant's submissions regarding their genuine and temporary intention to remain in Australia. The delegate's decision relied heavily on a single piece of evidence that was arguably outweighed by other material presented by Ravinder. The Court applied the principles established in *Minister for Immigration and Ethnic Affairs v Teoh* and *Saeed v Minister for Immigration and Multicultural Affairs*, which require decision-makers to consider all relevant information and to provide adequate reasons for their findings. The Court found that the delegate's failure to properly weigh the evidence constituted a jurisdictional error.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for reconsideration according to law.

Orders