FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAZA v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1504 |
| Catchwords: MIGRATION – Extension of time in which to seek judicial review of Tribunal decision affirming refusal of Student visa – applicant obtains Student visa – enrols in a series of courses – completes one short course – applicant absent from study for extended period – applicant claims father withdrew financial support and that grandfather offered financial assistance on condition that the applicant enrols in and completes further courses then returns to run family business – whether applicant was a genuine applicant for entry and stay as a student in Australia – Tribunal affirms delegate’s decision to refuse further Student visa – application for judicial review 15 months out of time – application for extension of time – applicable principles – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.65, 362B, 368, 476A, 477 |
| Applicant: | AHMAD RAZA |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 356 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 8 June 2018 |
| Date of Last Submission: | 8 June 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 5 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleksov |
| Solicitors for the Applicant: | Carina Ford Immigration Lawyers |
| Counsel for the Respondents: | Mr Yuile |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The name of the first respondent be…
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Details
- Case
- [2019] FCCA 1504
- Decision Date
CaseChat Overview and Summary
This matter concerned an appeal by the applicant, Raza, against a decision of the Minister for Home Affairs. The dispute centred on whether the Administrative Appeals Tribunal (AAT) had constructively failed to perform a review by not adequately considering an affidavit from the applicant's grandfather. The case was heard by Judge A Kelly.
The primary legal issue before the court was whether the Tribunal had failed to have regard to important corroborative evidence, specifically the affidavit of the applicant's grandfather, which tended to support the applicant's claims regarding his father's withdrawal of financial support and his subsequent inability to study. This was relevant to the Tribunal's assessment of whether the applicant was a genuine applicant for entry and stay in Australia as a student.
The court considered the principles established in *SZNVW* and subsequent cases, which indicate that an applicant must demonstrate unfitness to participate in a hearing, rather than merely a possibility of a different outcome if the Tribunal had been aware of their condition. The court noted that the test for legal unreasonableness is stringent. In this instance, the court found that the Tribunal's reasons demonstrated an intelligible justification for refusing to postpone the hearing, despite a suggested "infelicity" in those reasons. The court also considered Ground 3, which alleged a failure to consider the grandfather's affidavit. The Tribunal's assessment of the applicant's genuineness as a student, and his historical academic record under previous visas, was central to its decision.
The court concluded that Ground 2 did not raise sufficiently arguable matters to warrant an extension of time. The court's final orders are not explicitly stated in the provided text, but the reasoning suggests a dismissal of the appeal.
The primary legal issue before the court was whether the Tribunal had failed to have regard to important corroborative evidence, specifically the affidavit of the applicant's grandfather, which tended to support the applicant's claims regarding his father's withdrawal of financial support and his subsequent inability to study. This was relevant to the Tribunal's assessment of whether the applicant was a genuine applicant for entry and stay in Australia as a student.
The court considered the principles established in *SZNVW* and subsequent cases, which indicate that an applicant must demonstrate unfitness to participate in a hearing, rather than merely a possibility of a different outcome if the Tribunal had been aware of their condition. The court noted that the test for legal unreasonableness is stringent. In this instance, the court found that the Tribunal's reasons demonstrated an intelligible justification for refusing to postpone the hearing, despite a suggested "infelicity" in those reasons. The court also considered Ground 3, which alleged a failure to consider the grandfather's affidavit. The Tribunal's assessment of the applicant's genuineness as a student, and his historical academic record under previous visas, was central to its decision.
The court concluded that Ground 2 did not raise sufficiently arguable matters to warrant an extension of time. The court's final orders are not explicitly stated in the provided text, but the reasoning suggests a dismissal of the appeal.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The Full Court’s reasoning in SZNVW has been followed on frequent occasions. In particular, in Minister for Immigration and Citizenship v SZNCR,[28] Tracey J said:Following SZNVW an applicant who has a diagnosed mental impairment which does not render him or her 'entirely unfit' to attend a Tribunal hearing and answer questions cannot be held to have been denied a 'real and meaningful' opportunity to participate in the appeal hearing. It must be demonstrated that the applicant was unfit (in the sense of being unable) to give evidence, present arguments and answer questions in the course of the hearing. (emphasis added)Tracey J held that:. . . [the] mere possibility that the Tribunal, had it been aware of an applicant's mental state, may have formed a different conclusion about the applicant's credibility is not sufficient to establish a contravention of s 425(1). The High Court refused special leave to appeal.[29] [28] [2011] FCA 369, [30]. [29]SZNCR v Minister for Immigration and Citizenship [2012] HCASL 26. If the principles stated in SZNVW are to be applied in cases where an applicant has a diagnosed impairment of which a Tribunal is unaware, in my opinion it is no less incumbent upon an applicant who seeks an adjournment on the basis of suggested incapacity to demonstrate the unfitness for which they contend. And that is so whether the unfitness goes to the applicant’s ability to prepare for, or to attend, a hearing. The test of legal unreasonableness is stringent and the cases in which it will be established are rare.[30] For the reasons above, I do not accept that it was unreasonable in the requisite sense, for the Tribunal to decline the request to postpone the hearing. Despite the suggested infelicity in the Reasons, I consider that the Reasons demonstrate an intelligible justification for deciding to refuse to do so.[30]Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408, [11] (Kiefel CJ), [84], (Nettle and Gordon JJ). In my opinion, Ground 2 does not raise matters that are sufficiently arguable as to merit the grant of an extension of time. Ground 3 reads:The Tribunal constructively failed to perform a review in that it failed to have regard to the affidavit of the applicant’s grandfather, which was important corroborative evidence tending to confirm the applicant’s claims and tending against the Tribunal’s inability to reach a state of satisfaction that the applicant’s “father withdrew his financial support and this led to the applicant not studying for the 14-month period” (Reasons [12]). The applicant advanced Ground 3 as involving a failure to consider the Grandfather’s affidavit as supporting the applicant’s explanation for the father’s withdrawal of financial support and why he had not been engaged in study in the period August 2012 – October 2013. Contextually, the Tribunal was concerned to evaluate whether the applicant was a genuine applicant for entry and stay in Australia as a student: cl 572.223(2). Its consideration of whether the applicant was a genuine applicant for entry as a student called attention to his historical record as a student under the condition of his prior visas. One of those conditions[31] required that the applicant be, in effect, continuously enrolled to study in Australia during the period of his student visa. [31] Condition 8202.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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