Takhi v Minister for Immigration, Citizenship and Multicultural Affairs

Ms Takhi, an Indian national who arrived in Australia in 2008, applied for a student visa in 2015. The application was refused on the basis that she did not genuinely intend to stay in Australia temporarily. The decision was affirmed by the Administrative Appeals Tribunal and subsequently by the Federal Circuit Court of Australia (FCC). The applicants sought leave to appeal the FCC’s decision, which was refused.

The legal issues before the court were whether the primary judge was correct in applying the principles of Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 in relation to the hearing of an application for a show cause order, and whether the proposed grounds of appeal identified any arguable error of law in the primary judge’s decision. The court held that there were doubts as to the correctness of the primary judge’s approach in applying the principles of Spencer in the context of a show cause hearing. However, the court found that the proposed grounds of appeal did not identify any arguable error of law in the primary judge’s decision. The court concluded that the decision of the FCC was not attended with sufficient doubt to warrant the grant of leave to appeal and that the interests of justice would not be served by the grant of leave.

The application for leave to appeal the judgment of the FCC is dismissed. The applicants are to pay the costs of the first respondent as agreed or assessed.