Reasons for the Court Ruling in the Case of Khan V Minister for Immigration

Surname 1
KHAN V MINISTER FOR IMMIGRATION
Name:
Course:
Date:

Surname 2
Letter of Advice
Dear client,
RE: Reasons for the Court Ruling in the Case of Khan V Minister for Immigration
On 15 march 2016, the appellant made application for a visa. The application was
rejected on 16th may same year by minister’s delegate. The ground for refusal suggested that
there was no evidence accompanying the application to prove that the appellant had made an
application for skills assessment. It was clearly evident that by 15th march of 2016 skills
assessment application had not been made.1 Therefore, the application failed to go through since
it was not possible to process his payment as he lodged an application again on 17th day of 2016.
On 27th day of the same year, a favorable assessment was conducted.
The primary judge referred to Katzmann J in Anand decision. In this case, there was
involvement of cl 487.216 construction of the regulations. In all respects, the case was no
different to cl 485.223.2 The clause provides that there should be an accompaniment of evidence.
That is the applicant and any person involved who must have attained the age of sixteen; should
have made an application for “Australian Federal Police” check at the period of twelve months
just prior to the date of application. At the time the application for visa was made the appellant
had already applied for the police check. But he answered no on the question asking if he had
applied to the federal police for criminal records in the last one year. The question was in the
visa application form.
1 Brian Opeskin. "Managing international migration in Australia: Human rights and the “last major redoubt
of unfettered national sovereignty” (2012) International migration review 46, no. 3, 551-585.
2 Walker David and Aly, Anne. "Veiled threats: Recurrent cultural anxieties in Australia." (2017) Journal of
Muslim Minority Affairs 27, no. 2, 203-214.

Surname 3
Rejection by the minister’s delate was based on the ground that it was not evident if he
had made an application for the check.3 The Federal Magistrate Court refused a relief holding
that clause 487.216 provide for prove of police check application at the visa application period.4
The judge took a stern perception of the word accompanied. The breadth of the view might
provide rise to challenges in deciding the extent to which a departure from the temporal
provision might be allowed. It could appear as if there is no necessity for concept stretching,
provided that there might be delay of the visa application up to the point that the applicant can
evidently show that he or she has made an application for the skills assessment. Nevertheless, if
there is no accompaniment of evidence to the visa application a withdrawal is possible. Hence a
fresh application can only be carried out when there is availability of such evidence.
In this case, there was no discretion on the tribunal’s part as whether to apply or not cl
485.223 criterion to the appellant.5 If the visa application is in company of the required evidence
might involve an assessment of evidence and does not involve discretion exercise. Therefore the
tribunal appropriately construed cl 485.223 and applied the requirement in the write manner to
the facts present before it. Having acted in that manner, there was lack of evidence on the
appellant’s part to convince the time that during application time the criterion had fulfilled.
3 Afrose Kabir, Nahid. Muslims in Australia (2014) Immigration, race relations and cultural history.
Routledge.
4 Matthew Groves, and H. P. Lee. Australian administrative law: (2017) Fundamentals, principles and doctrines.
Cambridge University Press.
5 Matthew Groves, and H. P. Lee. Australian administrative law (2017) Fundamentals, principles and doctrines.
Cambridge University Press.