Peraj v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 10 March 2021
• Neutral Citation: [2021] FCA 184
• Date: 10 March 2021
• Court: Federal Court

Federal Court of Australia

Peraj v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 184

Appeal from:	Peraj v Minister for Immigration & Anor [2020] FCCA ##
File number:	SAD 51 of 2020
Judgment of:	BESANKO J
Date of judgment:	10 March 2021
Catchwords:	MIGRATION — appeal from an order made by the Federal Circuit Court of Australia dismissing the appellant’s application for judicial review of a decision made by the Administrative Appeals Tribunal — where the Tribunal affirmed a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant a Student visa to the appellant — where the delegate found that the appellant provided false or misleading information — where the Tribunal did not identify the precise respects in which the information was false or misleading — where the Tribunal did not identify knowledge of the false and misleading nature of the information as an element of the relevant public interest criterion — appeal allowed
Legislation:	Migration Act 1958 (Cth) s 5 Migration Regulations 1994 (Cth) Sch 2
Cases cited:	Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 CHZ19 v Minister for Home Affairs [2019] FCA 914 Faruque v Minister for Immigration and Border Protection [2015] FCA 1198 Fati v Minister for Home Affairs [2019] FCA 52 Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713; (1987) 14 ALD 291 Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; (2020) 274 FCR 646 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5; (2015) 144 ALD 243 Salopal v Minister for Immigration and Border Protection [2018] FCA 1308 Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42; (2014) 220 FCR 169
Division:	General Division
Registry:	South Australia
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	75
Date of hearing:	2 October 2020
Counsel for the Appellant:	Mr S Ower QC with Ms L Gavranich
Solicitor for the Appellant:	MSM Legal
Counsel for the First Respondent:	Mr S Cummings
Solicitor for the First Respondent:	Sparke Helmore Lawyers
Counsel for the Second Respondent:	The Second Respondent entered a submitting notice, save as to costs

ORDERS

		SAD 51 of 2020
BETWEEN:	FERDINAND PERAJ Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	BESANKO J
DATE OF ORDER:	10 March 2021

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. Orders 1 and 3 of the Federal Circuit Court of Australia made on 16 March 2020 be set aside and, in their place, order that writs of certiorari and mandamus be issued to the second respondent quashing the decision made on 7 August 2018 and remitting the matter to be determined according to law.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1. This is an appeal by the appellant from an order made by the Federal Circuit Court of Australia on 16 March 2020 dismissing the appellant’s application for judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal).

2. On 21 June 2017, the appellant applied for the grant of a Student (Temporary) (class TU) subclass 500 visa (Student visa). On 3 October 2017, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) refused to grant a Student visa to the appellant. On 19 October 2017, the appellant applied to the Tribunal for a review of the delegate’s decision. The Tribunal reviewed the decision and, on 7 August 2018, decided that the delegate’s decision should be affirmed. The appellant made an application to the Federal Circuit Court for judicial review of the Tribunal’s decision. That application was, as I have said, dismissed (Peraj v Minister for Immigration & Anor [2020] FCCA 712 (PJ reasons)). The appellant now appeals to this Court.

The Appellant’s Application before the Delegate

3. In the appellant’s application for the Student visa lodged with the then Department of Immigration and Border Protection (the Department), he provided the following details in response to a request to give details in support of his ability to meet the genuine temporary entrant criteria:

My name is Ferdinand Peraj, I come from Italy and my intention is to study in Australia for a temporary period. My residence is in Caraglio, a small city in the north of Italy, where I live with my family: my wife Rovena and my two daughters. I was born in Albania, I moved to Italy when I was 18, I have been living in Italy for 19 years and I am Italian citizen since 2010. After 19 years of work, in April I proposed to my current employer a break: I wanted to travel and explore Australia as a tourist, take my time to study English. At the beginning I left with a Tourist Visa, I visited a lot cities, in particular Adelaide, which I loved the most. Staying here made me realize how important is this experience for me, for this reason I asked an extension from my work break to my employer, finalised to study English and get an English certificate. Since the company I work for is expanding abroad, my employer accepted my proposal, in change I have to reach at least an upper intermediate level of English. My currently job position in the company is as Workmen Coordinator, I started to work there years ago as a simple worker until my current role. This study experience in Australia is a big opportunity for me to invest in my professional career. If I can significantly improve my English level I could aspire to manage and coordinate directly workmen in international projects. Among the numerous schools in Australia I chose Kaplan International English School, it is a global brand, recognised also in Italy. In this school the average age is a bit higher than other schools I visited and the classes consist of a maximum of 15 students, which allows teachers to get to know the pupils. This experience is temporary. My family will stay in Italy during this period, unfortunately, it was not possible to bring them with me. In term of private life, when coming back to Italy I want to live in my own house in Caraglio, with my family and continue to work in the same company.

4. In response to another request in the application form to provide details of his employment history, the appellant said that he is employed and that that is his current employment situation. He said that he is employed by an organisation known as Dimocart Italia and that...