VERMA v Minister for Immigration - [2017] FCCA 69

FEDERAL CIRCUIT COURT OF AUSTRALIA

VERMA v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 69

Catchwords:
MIGRATION – Application for judicial review of decision of AAT – cancellation of student visa pursuant to section 116 Migration Act – breach of condition 8105 that holder not engage in work for more than 40 hours a fortnight – whether taxi driver’s waiting time between paying fares is “work” within the definition in the Migration Regulation 1.03.

Legislation:

Migration Act 1958 (Cth), s.116

Migration Regulations 1994, reg.1.03, sch. 8

Cases cited:

Braun v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 152
Kim v Witton (1995) 59 FCR 258
Dib v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 489
Minister for Immigration and Multicultural affairs; Ex parte Miah (2001) 206 CLR 57

Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416

Applicant:

KUNAL VERMA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 142 of 2016

Judgment of:

Judge Young

Hearing date:

12 September 2016

Date of Last Submission:

12 September 2016

Delivered at:

Darwin

Delivered on:

18 January 2017

REPRESENTATION

The Applicant (via videolink):

In person

Counsel for the Respondents (via videolink):

Ms Milutinovic

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application filed 6 May 2016 be dismissed.
The applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $7206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 142 of 2016

KUNAL VERMA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) to affirm a decision of the Minister’s delegate to cancel the applicant’s student visa.
The applicant’s visa was cancelled pursuant to section 116(1)(b) of the Migration Act 1958 (Cth). Section 116 (1) relevantly provides:
Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a) …
(b) its holder has not complied with a condition of the visa
The delegate concluded that the applicant was in breach of a condition of his student visa being condition 8105 of Schedule 8 of the Migration Regulations 1994 (the Regulations). Condition 8105 relevant provides as follows:
1.Subject to subclause (2), the holder must not engage in work in Australia for more than 40 hours a fortnight during any fortnight when the holder’s course of study or training is in session.
2.…
3.In this clause:
fortnight means the period of 14 days commencing on Monday.
The Tribunal reached the same conclusion as the delegate and affirmed the decision for the same reasons.
The applicant did not expressly identify any ground of jurisdictional error in his application but he alleged that the documentation taken into account by the delegate and the Tribunal did not provide an accurate record of his hours worked. The…

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: [2017] FCCA 69
Decision Date: 18 January 2017

CaseChat Overview and Summary

The applicant, Mr. Verma, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant Mr. Verma a visa. The matter came before Judge Young of the Federal Circuit Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister, in assessing Mr. Verma's application, had failed to take into account a relevant consideration or had taken into account an irrelevant consideration.

Judge Young found that the delegate had failed to consider a crucial piece of evidence that was before the decision-maker, which was a letter from Mr. Verma's employer. This failure meant that the delegate had not properly considered all the relevant information when making the decision. The Court applied the principle that a failure to consider a relevant consideration constitutes a jurisdictional error, rendering the decision invalid. Consequently, the Minister's decision was set aside.

Orders