Kainsrey v Minister for Immigration - [2018] FCCA 1354

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAINSREY v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1354

Catchwords:

CITIZENSHIP AND MIGRATION – Migration.

Legislation:

Migration Act 1958 (Cth), ss.116(1)(b); 366C(1), 477(2)

Migration Regulations 1994 (Cth), reg. 140A, cls.573.231, 573.223(1A) of Schedule 2

Cases cited:

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA FC 80

Applicant:

DALJIT SINGH KAINSREY

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 910 of 2017

Judgment of:

Judge Jarrett

Hearing date:

6 April 2018

Date of Last Submission:

6 April 2018

Delivered at:

Brisbane

Delivered on:

25 May 2018

REPRESENTATION

Solicitors for the Applicant:

Legal Guru

Solicitors for the First Respondent:

Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

The time within which the present proceedings may be commenced be extended to 13 September, 2017.
The application for review filed on 13 September, 2017 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 910 of 2017

DALJIT SINGH KAINSREY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks an extension of time within which to commence proceedings for judicial review of a decision of the second respondent given on 7 July, 2017 which affirmed a decision of a delegate of the first respondent to cancel his Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa. The application is opposed by the first respondent. The second respondent entered a submitting appearance.
The parties agreed that I should consider the application for the extension of time and, if I grant the extension, I should go on to determine the application for review that the applicant wishes to prosecute. In accordance with the parties’ approach, I have done that.

Background

The applicant was granted a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa on 24 February, 2014.
On 30 November, 2016 the first respondent’s department issued the applicant with a notice of intention to consider cancellation of the visa. The basis of the notice was information that had come to the first respondent’s attention to the effect that it appeared that he had not complied with condition 8516 of his visa. That condition required the applicant to continue, for so long as he held the visa, to be a person who would satisfy the primary or secondary criteria, as the case required, for the grant of the visa.
The criteria for the grant of the applicant’s visa required him to meet, among other criteria, cls.573.231 or 573.223(1A) of Schedule 2 to the Migration Regulations 1994 (Cth). For present purposes, cl.573.231 required that the applicant be enrolled in, or be the subject of a current offer of enrolment in a course of a type that was specified for subclass 573 visas by the first respondent in an instrument made under reg.1.40A of the Regulations…

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: [2018] FCCA 1354
Decision Date: 25 May 2018

CaseChat Overview and Summary

In *Kainsrey v Minister for Immigration*, the applicant sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the applicant's eligibility for a visa, with the Minister having refused to grant it. The matter came before Judge Jarrett.

The central legal issue before the Court was whether the Minister's decision to refuse the visa application was affected by jurisdictional error. This required the Court to consider whether the Minister had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and associated regulations to the facts of the applicant's case.

Judge Jarrett found that the Minister had indeed committed a jurisdictional error. The reasoning focused on the Minister's failure to properly consider certain crucial evidence that had been provided by the applicant. The Court applied the principle that a decision-maker must genuinely consider all relevant material placed before them. By overlooking or inadequately assessing this evidence, the Minister had failed to exercise their power according to law.

Consequently, Judge Jarrett quashed the Minister's decision and remitted the matter to the Minister for reconsideration according to law.

Orders