Unsab v Minister for Immigration - [2020] FCCA 1704

FEDERAL CIRCUIT COURT OF AUSTRALIA

UNSAB v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1704

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – applicant found to be not enrolled at the time of decision – whether the Tribunal erred by refusing to adjourn to enable him to complete the conditions on an offer of enrolment considered – no jurisdictional error.

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5

Migration Act 1958 (Cth), ss.65, 359A, 359AA, 363, 348, 368, 368D

Migration Regulations 1994 (Cth)

Cases cited:

Abbas v Minister for Immigration & Anor [2019] FCCA 2577

AZAAD v Minister for Immigration (2010) 189 FCR 494

BLU18 v Minister for Immigration [2020] FCA 706

BPI17 v Minister for Immigration (No 2) [2020] FCA 252

BUP17 v Minister for Immigration & Anor [2019] FCCA 3193

CCQ17 v Minister for Immigration [2018] FCA 1641

CCR18 v Minister for Immigration [2020] FCA 9

GPV18 v Minister for Home Affairs [2020] FCA 393

Kaur v Minister for Immigration (2014) 144 ALD 292

Kaushik v Minister for Immigration & Anor [2019] FCCA 2850

Minister for Home Affairs v CSH18 (2019) 269 FCR 206

Minister for Immigration v Li (2013) 249 CLR 332

Minister for Immigration v Pandey (2014) 143 ALD 640

Minister for Immigration v SZGUR (2011) 241 CLR 594

Mushinwa v Minister for Home Affairs & Anor [2019] FCCA 1963

Singh v Minister for Immigration [2019] FCCA 2679

SZFDE v Minister for Immigration (2007) 232 CLR 189

SZRUI v Minister for Immigration [2013] FCAFC 80

Applicant:

MUHAMMAD UNSAB

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 443 of 2019

Judgment of:

Judge Driver

Hearing date:

24 June 2020

Date of Last Submission:

8 July 2020

Delivered at:

Sydney

Delivered on:

27 July 2020

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr P Hannan

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application filed on 18 November 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 443 of 2019

MUHAMMAD UNSAB

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant, Mr Unsab, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made orally on 11 November 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Unsab a temporary student visa. The following statement of background facts is derived from the submissions of the Minister filed on 10 June 2020.
On 30 August 2017, Mr Unsab applied for a Student (Temporary) (class TU) Student (subclass 500) visa (student visa) under s.65 of the Migration Act 1958 (Cth) (Migration Act) and subclass 500 of Schedule 2 of the Migration Regulations1994 (Cth) (Regulations).[1]
[1] Court Book (CB) 1
On 26 October 2017, the delegate refused the student visa application.[2] The delegate concluded that Mr…

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: [2020] FCCA 1704
Decision Date: 27 July 2020

CaseChat Overview and Summary

The applicant, Unsab, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the refusal of his student visa application. The core of the dispute concerned whether the AAT had erred in refusing to grant an adjournment to allow Unsab to fulfil the conditions of an offer of enrolment.

The primary legal issue before the Court was whether the AAT committed jurisdictional error by refusing to grant an adjournment. This required the Court to consider the scope of the AAT's discretion in managing its proceedings and the circumstances under which a refusal to adjourn might constitute a reviewable error.

Justice Driver found that the AAT had not committed jurisdictional error. The Court reasoned that the AAT was entitled to consider the applicant's circumstances as they stood at the time of the decision. The applicant had not provided sufficient evidence to demonstrate that an adjournment was necessary or that the conditions for enrolment could have been met within a reasonable timeframe. The AAT's decision to proceed without an adjournment was within its powers and did not amount to a failure to exercise its jurisdiction.

Orders