Legal Research
Cases
Riaz v MIBP

Riaz v MIBP

Case [2013] FCCA 2244 20 December 2013

Type to search within this case.

FEDERAL CIRCUIT COURT OF AUSTRALIA

RIAZ & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 2244

Catchwords:
MIGRATION – Review of decision of Migration Review Tribunal affirming decision of delegate refusing to grant a Skilled Graduate (Temporary)(Class VC, subclass 485) visa – whether applicant had satisfied “Australian study requirement” as defined in reg.1.15F of the Migration Regulations 1994 – whether, in addition to an applicant for a visa undertaking a course of at least 92 weeks, the expression “2 academic years study” in reg.1.15F(1)(c) required that the applicant also undertake the “usual or normal or approved full-time workload” of at least 92 weeks – whether Migration Review Tribunal erred in construing “2 academic years study” as requiring the applicant to show he undertook the “usual or normal or approved full-time workload” of at least 92 weeks.

Legislation:

Education Services for Overseas Students Act2000 (Cth), s.9

Education Services for Overseas Students Regulations 2001 (Cth), reg.2.01(2)(a)
Migration Regulations 1994 (Cth), reg.1.03, reg.1.15F, schd 2, cl.485.213(a)

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
Catlow v Accident Compensation Commission (1989) 167 CLR 543
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398
Connect East Management Ltd v Commissioner of Taxation [2009] FCAFC 22
Ganter v Whalland (2001) 54 NSWLR 122
King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184
Nayeem v Minister for Immigration & Citizenship [2010] FMCA 980
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
SAEED v Minister for Immigration and Citizenship (2010) 241 CLR 252

First Applicant:

SOHAIL RIAZ

Second Applicant:

FARWA HAIDER

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 976 of 2013

Judgment of:

Judge Manousaridis

Hearing date:

1 November 2013

Delivered at:

Sydney

Delivered on:

20 December 2013

REPRESENTATION

Solicitors for the Applicant:

Mr Prince

Solicitors for the Respondents:

Clayton Utz

ORDERS

The second applicant is removed as a party to this application.
The decision of the second respondent dated 11 April 2013 affirming the decision of the delegate of the first respondent dated 27 April 2012 refusing to grant the first applicant a Skilled Graduate (Temporary)(Class VC, subclass 485) visa is quashed.
The second respondent determine according to law the application made to it for review of the decision of the delegate of the first respondent dated 27 April 2012 refusing to grant the first applicant a Skilled Graduate (Temporary)(Class VC, subclass 485) visa.
Subject to paragraph 5, the first respondent pay the first applicant’s costs, as agreed or taxed.
Orders for costs previously made in the proceedings stand, and are not affected by the order for costs made in paragraph 4.
The title of the first respondent recorded in the application is amended to “Minister for Immigration and Border Protection”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 976 of 2013

SOHAIL RIAZ

First Applicant

FARWA HAIDER

Second…

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.

Continue reading Riaz v MIBP

Details

AGLC: RIAZ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2244
Case: [2013] FCCA 2244
Decision Date: 20 December 2013

CaseChat Overview and Summary

In *Riaz v MIBP*, the applicant, Mr. Riaz, sought judicial review of a decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (MIBP) to refuse his application for a Protection visa (class 786). The dispute centred on whether Mr. Riaz had established a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, should he be returned to his country of origin. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in law in their assessment of Mr. Riaz's claims. Specifically, the Court was required to determine if the delegate had failed to properly consider all relevant evidence, including country information and Mr. Riaz's personal circumstances, in reaching their conclusion that he did not hold a well-founded fear of persecution. This involved scrutinising the delegate's evaluation of the credibility of Mr. Riaz's account and the objective risk he faced.

Judge Manousaridis found that the delegate had made an error of law by failing to adequately consider and weigh certain key pieces of evidence presented by Mr. Riaz, particularly in relation to the political situation in his home country and the potential risks he faced due to his alleged past involvement with a particular political organisation. The Court held that the delegate's assessment was not sufficiently particularised and did not demonstrate a proper understanding of the nuances of the evidence. Consequently, the decision to refuse the Protection visa was set aside.

Orders