FEDERAL CIRCUIT COURT OF AUSTRALIA
| TSHERING v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2667 |
| Catchwords: MIGRATION – Student (Temporary) (class TU) Student (subclass 500) – Student Visa – Bhutan – Genuine Temporary Entrant – whether the Tribunal erred in not inviting the Applicant to interview – whether the Tribunal ignored supporting documents – whether the Applicant did not receive correspondence – whether the Tribunal was required to consider all of Ministerial Direction Number 69 even when not relevant – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss 359, 359C(1), 360(1), 360(3), 363A. Migration Regulations 1994 (Cth) r 500.212. |
| Cases cited: Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372. |
| Applicant: | PEMA TSHERING |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 419 of 2018 |
| Judgment of: | Judge McNab |
| Hearing date: | 12 September 2019 |
| Date of Last Submission: | 12 September 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 20 September 2019 |
REPRESENTATION
| The Applicant appearing | In Person |
| Solicitors for the Applicant: |
| Counsel for the Respondents: | Ms G Ellis |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the First Respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application filed 8 August 2018 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,000.
AND THE COURT NOTES:
Order amended pursuant to sub-rule 16.05(2)(e) of the Federal Circuit Court Rules (2001).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 419 of 2018
| PEMA TSHERING |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed on 8 August 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘Tribunal’) made on 4 July 2018. By that decision, the Tribunal affirmed a decision of the delegate (‘Delegate’) of the First Respondent not to grant the applicant a Student (Temporary) (class TU) Student (subclass 500) visa.
The matter was heard on 12 September 2019.
For the reasons which follow, I have concluded that the application should be dismissed.
Background
The applicant is a citizen of Bhutan and arrived in Australia on 12 July 2014. The applicant had been granted a Vocational Education Sector Student visa (Class TU, subclass 572) on 26 June 2014. On this visa, he completed a Diploma of Management between 4 August 2014 and 31 July 2015 and a Certificate III in Spoken and Written English between 3 August 2015 and 29 January 2016 at Stanley International College.
On 15 September 2016, he applied for a further student visa. The applicant intended to study Certificates III and IV in Commercial Cookery, a Diploma of Hospitality and an Advanced Diploma of Hospitality. By that application, the applicant expressed that he had a ‘future plan
Keep reading for free
Create a free CaseChat account to read Tshering v Minister for Home Affairs and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2019] FCCA 2667
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Federal Circuit Court were whether the AAT erred by failing to invite the applicant to an interview, whether it ignored supporting documents provided by the applicant, and whether the applicant had failed to receive correspondence from the AAT. Additionally, the court considered whether the AAT was obligated to consider all aspects of Ministerial Direction Number 69, even those not relevant to the specific circumstances of the application.
Judge McNab found no jurisdictional error on the part of the AAT. The court reasoned that the AAT was not obliged to invite the applicant to an interview, particularly where it had sufficient information to make a decision based on the documents before it. The AAT's decision was based on the material available, and there was no evidence that it ignored crucial supporting documents. Furthermore, the court determined that the AAT was not required to consider every part of Ministerial Direction Number 69 if those parts were not applicable to the applicant's case. The applicant's claims regarding non-receipt of correspondence were not substantiated to the court's satisfaction.
Consequently, the application was dismissed. The court ordered that the name of the First Respondent be amended and that the applicant pay the First Respondent's costs fixed at $5,000.
Orders
Orders of the court
The name of the First Respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship and Multicultural Affairs.
The application filed 8 August 2018 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,000.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.