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Tandukar v Minister for Immigration

Tandukar v Minister for Immigration

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Case Copied 11 December 2019 49 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

TANDUKAR v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3510

Catchwords:
MIGRATION – Student visa – where applicant had been resident in Australia for nine years – where applicant had undertaken multiple short courses – whether Tribunal misconstrued the regulation – statutory construction – no error of construction – applicable criterion properly applied – whether Tribunal assumed criterion could not be met as finding made that applicant intended to prolong stay – application properly considered – mandatory considerations – whether Tribunal failed to consider matters addressed in Direction No 53 – applicable principles – where applicant bore onus of demonstrating a failure to consider – where applicant merely pointed to reasons and took no further step – where Minister prepared table analysing evidence and reasons, demonstrating where no express finding made and no evidence led – application dismissed.

Legislation:

Acts Interpretation Act 1900 (Cth), s.15AA
Migration Act 1958 (Cth), ss.5J, 31, 65, 109, 360, 368, 474, 476, 498, 499
Migration Regulations 1994 (Cth), regs.1.15A, 2.41, Sch.2, cl.572.223

Cases cited:

Applicant:

SANJU TANDUKAR

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1298 of 2017

Judgment of:

Judge A Kelly

Hearing date:

25 January 2019

Date of Last Submission:

25 January 2019

Delivered at:

Melbourne

Delivered on:

11 December 2019

REPRESENTATION

Counsel for the Applicant:

Mr J.R. Young

Solicitors for the Applicant:

Shamser Thapa & Associates

Counsel for the Respondents:

Mr C. Tran

Solicitors for the Respondents:

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 3510
Decision Date: 11 December 2019

CaseChat Overview and Summary

The applicant, Mr. Tandukar, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the Minister for Immigration's refusal to grant him a student visa. Mr. Tandukar had resided in Australia for nine years and had completed multiple short courses during that period.

The primary legal issues before the Federal Circuit Court were whether the AAT had misconstrued the relevant migration regulation concerning the student visa application, and whether the AAT had erred by assuming the applicant's intention to prolong his stay in Australia meant the applicable criterion could not be met. Additionally, the court considered whether the AAT had failed to consider matters addressed in Direction No 53, a mandatory consideration for visa applications.

Judge A Kelly found no error in the AAT's construction of the regulation, concluding that the applicable criterion had been properly applied. The court determined that the AAT had not made an assumption that the criterion could not be met simply because the applicant intended to prolong his stay, but rather had properly considered the application. Regarding Direction No 53, the onus was on the applicant to demonstrate a failure by the AAT to consider relevant matters. The applicant had not discharged this onus, merely pointing to the AAT's reasons without further substantiation. The Minister's detailed analysis, presented in a table, demonstrated that where no express finding was made by the AAT, no evidence had been led by the applicant to support such a finding. Consequently, the application for judicial review was dismissed.

Orders