Saini v Minister for Immigration and Border Protection [2016] FCA 858

FEDERAL COURT OF AUSTRALIA

Saini v Minister for Immigration and Border Protection [2016] FCA 858 Appeal from: Saini & Anor v Minister for Immigration & Anor [2015] FCCA 2379

File number: NSD 1105 of 2015

Judge: LOGAN J

Date of judgment: 29 July 2016

Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court – where Minister's delegate refused to grant the first respondent a student visa subclass 573.223(1) of Schedule 2 to the Migration Regulations 1994 (Cth) – where decision of the Minister's delegate affirmed by the Migration Review Tribunal – where Federal Circuit Court judge dismissed application for judicial review of the decision of the Migration Review Tribunal – whether the Federal Circuit Court erred in construction of the clause "that the applicant intends genuinely to stay in Australia temporarily", in cl.572.223(1)(a) of Schedule 2 to the Migration Regulations 1994. HELD - dismissing the appeal, if there is a settled intention, at the time of decision, later to seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention "genuinely to stay in Australia temporarily". What is required is an evaluation by the decision-maker of intention as at the time of decision

Legislation: Migration Act 1958 (Cth) ss 499, 499(1), 499(2) Migration Amendment Regulations 2011 (No. 6) (Cth) Migration Regulations 1994 (Cth), Schedule 2, cl.573.223, 573.223(1) Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases cited: Comcare Australia (Defence) v O'Dea (1998) 87 FCR 451 Hafza v Director General of Social Security (1985) 6 FCR 444; (1985) 60 ALR 674 Khanna v Minister for Immigration and Border Protection (2015) 298 FLR 388; [2015] FCCA 1971 Khanna v Minister for Immigration and Border Protection [2016] HCASL 155 Minister for Immigration and Border Protection v Khanna [2016] FCA 142