Singh v Minister for Immigration
[2017] FCCA 1426
•29 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1426 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Indian citizen – student visa – whether genuine temporary entrant – appearance by telephone – whether applicant was understood – whether real and meaningful hearing – whether relevant matters considered – whether impermissible merits review sought – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.31, 65, 360, 366, 429A, 474, 476, 499 Migration Regulations 1994 (Cth), Sch.2, cl.572.223 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 Maudhoo v Minister for Immigration & Anor [2015] FCCA 1741 Minister for Immigration & Border Protection v MZYTS & Anor [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 |
| Applicant: | TEJPREET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 107 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 23 June 2017 |
| Date of Last Submission: | 23 June 2017 |
| Delivered at: | Perth |
| Delivered on: | 29 June 2017 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Mr E Solana |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 107 of 2016
| TEJPREET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Pursuant to s.476(1) of the Migration Act 1958 (Cth) (“Migration Act”) the applicant filed on 8 March 2016 an application seeking judicial review (“Judicial Review Application”) of a decision of the second respondent, the Administrative Appeals Tribunal dated 19 February 2016 (“AAT Decision” and “AAT” respectively) affirming a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) not to grant the applicant a Student (Temporary) (Class TU) visa (“Temporary Student Visa”). The AAT Decision appears in the Court Book (“CB”) at CB 215-225.
In order to be granted the Temporary Student Visa, the applicant had to meet a number of criteria: ss.31(3) and 65(1)(a)(ii) of the Migration Act. Those criteria included cl.572.223(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”). Clause 572.223(1)(a) of Schedule 2 to the Migration Regulations (the genuine temporary entrant criterion) required that the following criteria be satisfied at the time of the decision:
(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) if the Applicant is a minor - the intentions of a parent, legal guardian or spouse of the Applicant; and
(iv) any other relevant matter.
Background
The background prior to the making of the AAT Decision is as follows:
a)the applicant, a citizen of India, lodged an application for the Temporary Student Visa on 2 December 2014: CB 13-20. The application was made on the basis that the applicant was enrolled at the Kingston International College in a Certificate III and IV in Commercial Cookery and a Diploma of Hospitality;
b)on 3 December 2014, the applicant was requested to provide further information, including evidence to demonstrate his intention to temporarily stay in Australia and a statement outlining his reasons for undertaking the courses specified in the application: CB 30-39. In response, the applicant submitted a statement which stated, in short, that he intended to study the Diploma of Hospitality course because he wanted to run his own hospitality business in the future: CB 49-50;
c)on 30 December 2014, the Delegate refused to grant the applicant the Temporary Student Visa. The Delegate had regard to the relevant factors set out in "Ministerial Direction No. 53 - Assessing the genuine temporary entrant criterion for Student visa" (“Direction 53”). Direction 53 was made pursuant to s.499 of the Migration Act, and by operation of s.499(2A) of the Migration Act the Delegate was required to comply with it. On the available evidence, the Delegate was not satisfied that the applicant intended genuinely to stay in Australia temporarily as a student, and the Delegate therefore found that the applicant did not satisfy cl.572.223(1)(a) of Schedule 2 to the Migration Regulations: CB 70-73;
d)on 20 January 2015, the applicant applied to the AAT for review of the Delegate’s Decision: CB 82-83;
e)on 25 November 2015, the applicant was invited to appear at a hearing before the AAT on 16 December 2015 to give evidence and present arguments: CB 106-110. The hearing invitation specifically noted that the AAT would assess whether the applicant intended genuinely to stay in Australia temporarily as a student and enclosed a copy of Direction 53; and
f)the scheduled hearing was adjourned because the applicant required an interpreter, which had not been arranged: CB 116-119. On 17 December 2015, the AAT invited the applicant to attend a resumed hearing: CB 171-174 which proceeded on 29 January 2016: CB 182-184.
AAT Decision
In the AAT Decision the AAT:
a)noted that the issue in the case was whether the applicant met cl.572.223 of Schedule 2 to the Migration Regulations: CB 216 at [9], and referred to, and outlined the factors in Direction 53, noting that the factors were intended not as a checklist, but to guide decision-makers to weigh up the applicant's circumstances as a whole, in reaching a finding about whether the applicant satisfied the genuine temporary entrant criterion: CB 217 at [10]-[11];
b)noted that there existed factors indicating that the applicant intended genuinely to stay in Australia temporarily, including that he had strong family ties to India, that he had pursued studies in commercial cookery since October 2014 and achieved satisfactory attendance and progress, and that if the applicant did establish a restaurant in India he was likely to generate greater income than if he worked on the family farm: CB 222 at [42];
c)the AAT was ultimately not satisfied, and did not accept that the applicant intended to genuinely stay in Australia temporarily, having regard to a number of other matters including:
i)that it did not accept the applicant travelled to Australia with a view to pursuing studies for the purposes of returning to India to establish a restaurant or that he had a special interest in hospitality since his childhood;
ii)that the applicant completed a Diploma of Mechanical Engineering in India in 2013, which was inconsistent with a career plan to work in the hospitality industry or establish a restaurant business in India: CB 222 at [44];
iii)that the applicant travelled to Australia on a subclass 573 visa on the basis that he would spend four years studying a Diploma of Business and Bachelor of Business. He made no enquiries as to what courses were available in Australia that may be relevant to opening a restaurant in India, or enquiries into what the Bachelor and Diploma of Business courses involved and if they were relevant. The AAT did not consider that enrolling in a four year course in business, which had limited relevance to establishing and running a restaurant, and making no inquiries about the relevance of the course, was consistent with an intention to travel to Australia to learn skills for the purpose of returning to India to open a restaurant: CB 222 at [45];
iv)that the AAT found it troubling that the applicant stated that he wanted to have a career in the restaurant industry, and that is why he travelled to Australia, yet the applicant only researched cookery courses after being in Australia for three months and not earlier: CB 222 at [46];
v)that there was no documentary evidence from Murdoch University that the applicant expressed his intention to change courses to a cookery course: CB 227 at [47];
vi)that it did not accept the applicant’s representative's submission that a person can reasonably change career paths, observing at CB 223 at [48] that:
The Tribunal considered the representative's submission that a person can reasonably change career direction. In this instance, the applicant stated that he travelled to Australia to study for the purposes of a career in the cooking industry and submitted in documents that it was his dream to operate in the hospitality industry and he had a special interest since childhood. This is not a case where the applicant decided to change career path after arriving in Australia. Rather, it appears the applicant's evidence is that he always wanted to work in the restaurant/hospitality industry - but this is not consistent with his previous studies - in mechanical engineering and proposed business studies for four years - therefore the Tribunal has some reservations as to the applicant's intention in seeking a student visa for the purposes of studies in commercial cookery and hospitality and a change in career direction.
vii)that the applicant had been granted a subclass 573 visa to undertake business studies, and it was only after he was issued with a Notice of Intention to Cancel the subclass 573 visa in relation to his business studies that he took steps to apply for the Temporary Student Visa, and his reason “that he did not know what visa to apply for” was in the AAT’s view not convincing, and the timing of the application for the Temporary Student Visa indicated that the applicant wished to ensure that he continued his stay in Australia: CB 223-224 at [49];
viii)at CB 224 at [50] said as follows:
In short, the Tribunal finds that the applicant enrolled in the two Business courses in the higher education sector for the purposes of securing a student visa to travel to Australia under the streamlined visa processing system. Once the applicant arrived in Australia, the applicant notified the education provider he did not intend to continue study but return home, so that he could be released from the higher education sector course which is an expensive course and then transfer to a cheaper and lower cost course in the vocational education sector. The applicant enrolled in the cheaper, shorter course for the purposes of maintaining his student visa. However, after receiving the notice of intention to cancel, the applicant then consulted with an agent and lodged a subclass 572 visa to ensure he could remain in Australia. The Tribunal considers these findings indicate that the applicant does not intend genuinely to stay in Australia temporarily. The Tribunal does not accept the applicant has an intention and always held an intention to study to pursue a career in the restaurant industry. The previous courses undertaken by the applicant are not consistent with this purpose. Consequently, the Tribunal does not accept the applicant intends to undertake the cookery courses in Australia for a temporary period and with a view to returning to India to establish a restaurant in India.
ix)that it took into consideration that the applicant had not worked in the restaurant industry in Australia or India, had made no business plans in relation to a restaurant business in India, and had not returned to India since arriving in Australia: CB 224 at [51] and [54];
x)that it considered that the applicant had limited financial resources available to him in India, no work history other than agricultural work and a lack of assets in India, indicating that he did not have a strong financial incentive to return to India: CB 224 at [53]; and
xi)that a statutory declaration sent to the AAT after the AAT hearing, which made reference to the amount of money spent by the applicant’s parents in having him study in Australia, had been considered, “in the context of the other evidence and findings” and the AAT found “that it indicates the applicant does not intend genuinely to stay in Australia temporarily”: CB 224-225 at [55], and went on to find at CB 224-225 at [55] that:
It is clear the family have invested a substantial proportion of their life savings in sending the applicant to Australia with a view to him obtaining an education and having a successful career in Australia. The applicant specifically refers to obtaining a “successful career in Australia” and this is another factor, in combination with the family investing so much in the applicant, that indicate the applicant does not intend genuinely to stay in Australia temporarily for the purposes of study.
d)ultimately, it was not satisfied that the applicant intended to genuinely stay in Australia temporarily and that the applicant therefore did not meet the requirements of cl.572.223(1)(a) of Schedule 2 to the Migration Regulations: CB 225 at [56]. The AAT therefore affirmed the Delegate’s Decision: CB 215 and CB 225 at [58].
The Judicial Review Application
The grounds of the Judicial Review Application are as follows:
1. I came to Australia on Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa which was granted on 10 April 2014 to study Diploma of Commerce leading to Bachelor of Business in International Business from Murdoch University in Perth, WA
2. Due to hard business studies, weak English, new environment and discomforting remarks from lecturers, I was losing my focus, I consulted my parents back home and placed the facts in front of them. I was told by the lecturer in the college of my inadequate performance and lack of understanding that may result in poor academic results which in turn will result in my visa cancellation so I must do something about it.
3. I decided to change my course. I enrolled in Certificate III in Commercial Cookery, Certificate IV a prerequisite course for Diploma of Hospitality. Late October 2014 I commenced my studies at Kingston International College in Perth and was issued the relevant COE for the courses on 6 November 2014 without much gap in his studies.
4. As was no longer studying a course that was attached to Higher Education Sector - SC 573, I approached the office of Department of Immigration and Border Protection in Perth and was advised by the client services to apply for SC572 visa application as this was the correct visa for my studies.
5. I applied for SC 572 student Visa on 2 December 2014.
6. My SC 572 to visa was refused stating that I was not genuine student.
7. I lodged an appeal for review of my case to Administrative Appeals Tribunal (previously known as MRT).
8. I was asked to have a telephone hearing on 16 December 2015 which was adjourned as I was not provided a translator.
9. The telephone hearing resumed on 29 January 2016 with a translator. I tried to put forward my case on the phone but the Tribunal Member did not understand that I am a genuine student studying. The line was not good and I could not understand well. The Tribunal affirmed department decision without even taking into the account that I met the SC572 visa criteria.
10. My appeal to this Honourable Court is to provide me with Natural Justice and set aside the cancellation decision of the Department of Immigration and Border Protection and set aside the decision made by Administrative Appeals Tribunal (Migration Review Tribunal). There has been a judicial error by AAT as I do meet the Subclass 572 criteria for Student Visa.
The above grounds of the Judicial Review Application largely reiterate the procedural history of the matter, but it appears that the following possible jurisdictional errors may be discernible from these grounds. Firstly, at the hearing before the AAT, at which the applicant appeared at by telephone, the line was not good, the applicant could not understand well and the AAT member did not understand that he was a genuine student. This might be said to be a failure to afford the applicant an opportunity to be heard, contrary to the provisions of s.360 of the Migration Act (“Ground 1”). Secondly, that the AAT failed to consider the applicant’s claims, and the AAT therefore affirmed the Delegate’s Decision without taking into account that the applicant met the criteria for a Temporary Student Visa, and there has been an error by the AAT because the applicant does meet the criteria for the Temporary Student Visa (“Ground 2”).
The Court made orders on 16 May 2016 under which the applicant was permitted to file an amended application and any affidavit evidence by 21 June 2016, and any written submissions by 12 May 2017. Nothing was filed or served prior to the hearing. The Minister filed written submissions on 2 June 2017 in accordance with the abovementioned Court orders.
The applicant made oral submissions at hearing, and submitted that:
a)he did meet the criteria for the Temporary Student Visa; and
b)the fact that he had continued in his course of studies proved that he was a genuine student who intended to stay temporarily in Australia.
The Minister’s oral submissions at hearing reflected the written submissions filed on 2 June 2017.
Consideration
Jurisdictional error required
The AAT Decision is only liable to be set aside on judicial review by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. The AAT only makes a jurisdictional error if it:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the AAT’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Ground 1
The applicant's contention that "the line was not good" and the applicant could not understand the AAT member at the hearing by telephone is not made out on the available evidence. There is currently no evidence before the Court (such as a re-interpretation of the recording of the AAT hearing) to suggest that the applicant was not given a real and meaningful hearing pursuant to s.360 of the Migration Act. In the absence of such evidence, the applicant's allegation in relation to what occurred at the AAT hearing cannot succeed: NAOA v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241. Moreover, there is no express reference in, or implication which arises from, the AAT Decision that the AAT member had any difficulty understanding the applicant or any concerns regarding the applicant's ability to communicate with the AAT. To the contrary, the AAT Decision indicates that the applicant was able to give evidence to the AAT and the applicant’s migration agent was able to make submissions. Nor is there any evidence that either the applicant (or his migration agent) took any steps during or following the hearing to inform the AAT that the applicant did not consider he had had a sufficient opportunity to express himself at the hearing.
Section 366 of the Migration Act provides that:
(1) For the purposes of the review of a decision, the Tribunal may allow an appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:
(a) telephone; or
(b) closed-circuit television; or
(c) any other means of communication.
(2) If, when a review is in public, a person appears or gives evidence by a means allowed under subsection (1), the Tribunal must take such steps as are reasonably necessary to ensure the public nature of the review is preserved.
Section 366 of the Migration Act is in substantially similar terms to s.429A of the Migration Act (relating to refugee matters). In the context of s.429A of the Migration Act, it was said in SZJTK v Minister for Immigration & Citizenship [2008] FCA 1712 at [23]-[25] per Reeves J (“SZJTK”) that:
23. As is apparent from its terms, this section requires the Tribunal to give an applicant an opportunity to appear before it, to give evidence and to present arguments. However, it does not require that the opportunity to appear before the Tribunal must be an appearance “in person”.
24. Indeed, s 429A of the Act expressly allows for appearances before the Tribunal to be conducted using such technology. It provides:
“For the purposes of the review of a decision, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:
(a) telephone; or
(b) closed-circuit television; or
(c) any other means of communication.”
25 As the Federal Magistrate observed, this is an enabling provision. It clearly gives the Tribunal a discretion to allow an applicant's appearance (for the purposes of a review hearing under s 425 of the Act) to be undertaken by telephone, closed-circuit television (which is probably not the same as a video conference facility), or any other means of communication (which clearly would include a video conference facility).
In Minister for Immigration & Border Protection v Dhillon [2014] FCAFC 157; (2014) 227 FCR 525 (“Dhillon”) the Full Court of the Federal Court dealt with an appeal from a hearing where the applicant was in Perth and available by video link, his adviser was in Melbourne and the interpreter in Sydney, both available by telephone: Dhillon at [28] per Allsop CJ, Murphy and Pagone JJ. The Full Court of the Federal Court held that it was open to the then Migration Review Tribunal (the predecessor of the AAT for these purposes) to conduct the hearing by video link, and whilst the overall circumstances of the conduct of the hearing were not ideal the Migration Review Tribunal proceeded in a manner permitted by the discretion given to it, and cited SZJTK at [24]-[25] per Reeves J, as well as a number of other first instance Federal Court decisions in which the Federal Court found that the then Refugee Review Tribunal (another predecessor of the AAT) was entitled to hear administrative review applications by telephone.
The applicant was given the option to appear in the same location as the AAT but elected to appear by telephone: CB 175. The AAT clearly had a discretion to hold the hearing by telephone: Migration Act, s.366(1). That discretion did not miscarry: Dhillon at [28] per Allsop CJ, Murphy and Pagone JJ; SZJTK at [24]-[25] per Reeves J. Nor is there any, or any sufficient, evidence that the applicant was denied a real and meaningful opportunity to appear before, and give evidence and present arguments to the AAT: Migration Act, s.360(1).
Having regard to the matters set out at [11]-[15] above, the applicant has not established any breach of s.360 of the Migration Act, and ground 1 is not made out.
Ground 2
There is no doubt that the AAT had to consider all the claims made by the applicant, and all the integers of those claims as articulated by the applicant, or discernible by the AAT: Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; [2003] 197 ALR 389; (2003) 73 ALD 321; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [47] per French, Sackville and Healy JJ; Minister for Immigration & Border Protection v MZYTS & Anor [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 at [34] and [62] per Kenny, Griffiths and Mortimer JJ. In this case, as is evident from the Court’s summary of the AAT Decision at [4] above, the AAT dealt with the claims made by the applicant, and the issues arising from the applicant’s claims. In the circumstances, there was no jurisdictional error by reason of a failure to consider the applicant’s claims or the integers of the applicant’s claims.
The AAT Decision:
a)correctly identified the issue as being whether the applicant met the criteria in cl.572.223(1)(a) of Schedule 2 to the Migration Regulations, which required it to have regard to the factors in Direction 53: CB 216 at [9];
b)correctly noted that the factors in Direction 53 should not be used as a checklist but were intended to guide decision-makers to weigh up the applicant's circumstances as a whole in reaching a finding about whether the applicant satisfied the genuine temporary entrant criterion: CB 216 at [11];
c)properly considered the applicant's evidence and engaged in an "active intellectual process" and gave "genuine" consideration to the factors set out Direction 53: Minister for Immigration & Citizenship v Khadgi & Anor [2010] FCAFC 145; (2010) 190 FCR 248; (2010) 274 ALR 438; (2010) 119 ALD 26 [at [57] per Stone, Foster and Nicholas JJ] (“Khadgi”); and
d)made findings in relation to the factors that had practical relevance to the applicant's circumstances and evidence: Singh v Minister for Immigration & Border Protection [2016] FCA 74; Maudhoo v Minister for Immigration & Anor [2015] FCCA 1741 at [17] per Judge Emmett; Khadgi at [60]-[62] per Stone, Foster and Nicholas JJ; Sharma v Minister for Immigration & Anor [2015] FCCA 575 at [18] per Judge Vasta.
The Court particularly notes that there was no failure to take into account whether or not the applicant met the criteria for a Temporary Student Visa, as the issue of whether or not the applicant met the genuine temporary entrant criterion was the issue considered by the AAT. In so doing, the AAT also dealt with the issue raised by the applicant in his oral submissions at hearing concerning whether his continuance in his course of studies proved that he was a genuine student who intended to stay temporarily in Australia. That matter was considered, and was given weight as a factor which might indicate that the applicant intended genuinely to stay in Australia temporarily: CB 222 at [42], but was outweighed by other factors considered by the AAT as indicating that the applicant did not intend to genuinely stay in Australia temporarily: see [4(c)] above, and CB 222-225 at [44]-[55].
In all of the above circumstances, it is evident that the AAT:
a)correctly identified the relevant issue;
b)asked itself the correct question; and
c)had regard to all of the relevant material in dealing with the issues and questions before it, and did not have regard to any irrelevant material,
and in so doing arrived at factual conclusions which were open to it. The AAT therefore engaged in a legitimate and proper exercise of administrative decision-making which reveals no jurisdictional error, either in relation to the grounds set out in the Judicial Review Application, or otherwise. The AAT Decision, and the findings made within it, are not such that no rational or logical decision-maker could reach them on the same evidence: Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16, (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [130] per Crennan and Bell JJ. The AAT’s finding that the applicant was not a genuine temporary entrant and did not meet the criteria in cl.572.223(1)(a) of Schedule 2 to the Migration Regulations, was therefore open to it for the reasons it gave. No error, let alone jurisdictional error, is revealed.
This ground of the Judicial Review Application therefore constitutes no more than an impermissible request for the Court to engage in merits review based on the applicant’s dissatisfaction with the findings in the AAT Decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ and Toohey, McHugh and Gummow JJ; NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ.
Having regard to the matters set out at [17]-[21] above ground 2 is not made out.
Conclusion and orders
For the reasons set out above the Court has concluded that the AAT Decision is not affected by jurisdictional error. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 29 June 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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