Shoukat v Minister for Home Affairs

FEDERAL COURT OF AUSTRALIA

Shoukat v Minister for Home Affairs [2020] FCA 194

Appeal from:

Shoukat v Minister for Home Affairs [2019] FCCA 1595

File number(s):

VID 658 of 2019

Judge(s):

O'CALLAGHAN J

Date of judgment:

27 February 2020

Legislation:

Migration Regulations1994 (Cth) Sch 2, cl 572.223(1)(a)

Cases cited:

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594

Date of hearing:

6 February 2020

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

No catchwords

Number of paragraphs:

29

Counsel for the Appellant:

The appellant appeared in person (with the aid of an interpreter)

Counsel for the First Respondent:

Mr N Swan

Solicitor for the First Respondent:

Mills Oakley

Counsel for the Second Respondent:

The second respondent filed a submitting notice save as to costs

ORDERS

VID 658 of 2019

BETWEEN:

MUHAMMAD AHMAD SHOUKAT

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	O'CALLAGHAN J
DATE OF ORDER:	27 FEBRUARY 2020

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs, to be agreed or assessed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’CALLAGHAN J:

1. The appellant appeals from a judgment of the Federal Circuit Court dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal), which had affirmed a decision of a delegate of the first respondent (the Minister) refusing to grant to him a Student (Temporary) (Class TU, subclass 572) visa.

2. The appellant is a citizen of Pakistan born in January 1986.  He arrived in Australia in May 2013 on a student visa.  On 23 February 2015, he applied for the visa the subject of this proceeding. 

3. In order to be granted the visa, the appellant was required to satisfy, inter alia, cl 572.223(1)(a) of Sch 2 to the Migration Regulations1994 (Cth) (the relevant regulation), which at the time of his application provided:

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)        the applicant’s circumstances; and

   (ii)       the applicant’s immigration history; and

   (iii)      … and

   (iv)      any other relevant matter …

4. On 17 April 2015, a delegate of the Minister refused to grant the appellant the visa. The delegate was not satisfied that the appellant intended genuinely to stay in Australia temporarily, and found therefore that he did not satisfy the relevant regulation.

5. The appellant next sought review of the delegate’s decision before what was then the Migration Review Tribunal.  

6. On 7 July 2016, the Tribunal invited the appellant to appear before it at a hearing to be held on 2 August 2016.  That hearing took place on the date scheduled. 

7. The appellant provided a…