Shoukat v Minister for Home Affairs - [2019] FCCA 1595

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHOUKAT v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 1595

Catchwords:
MIGRATION – Student visa – show cause – whether applicant meets the prescribed criteria for the subclass – whether the applicant genuinely intended to stay in Australia temporarily – jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 474, 476, 499
Migration Regulations 1994 (Cth), cl.572.223

Cases cited:

Bala v Minister for Immigration and Border Protection [2019] FCA 600
Ghimire v Minister for Immigration and Border Protection [2014] FCA 899
Htun v Minister for Immigration for Multicultural Affairs [2001] 194 ALR 244
Kaur v Minister for Home Affairs [2019] FCCA 1372
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Lay Lat [2006] 151 FCR 214
Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant:

MUHAMMAD AHMAD SHOUKAT

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1928 of 2016

Judgment of:

Judge A Kelly

Hearing date:

3 June 2019

Date of Last Submission:

3 June 2019

Delivered at:

Melbourne

Delivered on:

3 June 2019

REPRESENTATION

The Applicant:

In Person

Solicitor Advocate for the Respondents:

Ms Zinn

Solicitors for the Respondents:

Mills Oakley

ORDERS

The title of the first respondent be amended to Minister for Home Affairs.
The application filed on 8 September 2016 be dismissed.
The applicant pay the costs of the first respondent fixed at $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1928 of 2016

MUHAMMAD AHMAD SHOUKAT

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore revised from transcript)

Introduction

By application dated 8 September 2016, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 1 September 2016 affirming a decision of a delegate of the first respondent Minister refusing to grant him a Student (Temporary) (class TU) visa (visa) pursuant to section 65 of the Migration Act 1958 (Cth) (Act).

Background

The applicant, a Pakistan citizen aged 33 years, first came to Australia on 10 May 2013 as the holder of a Student (Subclass 573) visa.
On 23 February 2015, the applicant applied for a Student (Subclass 572) visa on the basis of his enrolment in a Diploma of Automotive Management.
On 17 April 2015, a delegate of the Minister refused the visa application, not being satisfied that the applicant genuinely intended to stay in Australia temporarily. The delegate gave consideration to the factors in Ministerial Direction No 53 – Assessing the genuine temporary entrant criterion for student visa applications. The delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily.
On 5 May 2015, the applicant’s registered migration agent lodged an application with the Tribunal for review of the delegate’s decision. On 1 July 2016, the applicant…

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: [2019] FCCA 1595
Decision Date: 3 June 2019

CaseChat Overview and Summary

In *Shoukat v Minister for Home Affairs*, the applicant, Mr Shoukat, sought judicial review of the Minister for Home Affairs' decision to refuse his application for a partner visa. The dispute centred on whether the Minister had adequately considered the applicant's submissions regarding his genuine and continuing relationship with his partner, and whether the decision-making process was procedurally fair. The matter was heard in the Federal Court of Australia.

The primary legal issues before the Court were: (1) whether the delegate's decision to refuse the visa application was affected by jurisdictional error, specifically in failing to properly consider the applicant's evidence and submissions concerning the genuineness of his relationship; and (2) whether the delegate's decision-making process was procedurally unfair, in particular, whether the applicant was given adequate notice of the adverse information that would be relied upon and a sufficient opportunity to respond.

Judge A Kelly found that the delegate had failed to properly consider crucial evidence provided by the applicant regarding the nature and duration of his relationship, which was central to the visa criteria. The Court held that this failure constituted a jurisdictional error, as the delegate had not undertaken the task required by the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). Furthermore, the Court determined that the delegate's communication with the applicant regarding adverse information was insufficient, thereby breaching the principles of procedural fairness.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders