Kang v Minister for Immigration - [2017] FCCA 2785

FEDERAL CIRCUIT COURT OF AUSTRALIA

KANG v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2785

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – confirmation of a dismissal for non appearance – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.338, 347, 348, 360, 360A, 362B, 362C, 368, 379A, 379B, 379C, 379G
Migration Regulations 1994 (Cth)

Cases cited:

AYT16 v Minister for Immigration [2017] FCA 252

AZAFB v Minister for Immigration [2015] FCA 1383
Minister for Immigration v SZFHC (2006) 150 FCR 439
NBBL v Minister for Immigration (2006) 152 FCR 592
Singh v Minister For Immigration [2017] FCA 530
Singh v Minister for Immigration & Anor [2016] FCCA 2746

Applicant:

MICHAEL IMAN SINGH KANG

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1229 of 2017

Judgment of:

Judge Driver

Hearing date:

14 November 2017

Delivered at:

Sydney

Delivered on:

14 November 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms S He of Mills Oakley

INTERLOCUTORY ORDERS

Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667 in accordance with Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1229 of 2017

MICHAEL IMAN SINGH KANG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant, Mr Kang, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 27 March 2017 under s.362B(1E) of the Migration Act1958 (Cth) (Migration Act).
In that decision the Tribunal confirmed its decision made on 6 March 2017 under s.362B(1A) of the Migration Act, dismissing Mr Kang’s application because of his failure to appear at the scheduled Tribunal hearing.
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 3 November 2017.

Background

Mr Kang is a male citizen of India, who on 1 November 2016, applied for a medical treatment (visitor) class UB subclass 602 visa[1]. Mr Kang requested that all written communications be sent to his migration agent, Mr Gaganjot Singh Bhatia of Ace Immigration Consultants[2]. In the form appointing Mr Kang’s migration agent, the agent indicated that he consented to the Minister’s Department communicating with him by fax, email or other electronic means, and provided the email address aceimmigrationparramatta@gmail.com[3].
[1] Court Book (CB) 1-11
[2] CB 7; CB 12
[3] CB 12
Along with the application, Mr Kang provided a letter[4] signed and addressed to the director of Ace Immigration Consultants dated 31 October 2016 stating:
I, Michael Iman Singh Kang, understand and acknowledge that I have been told that my application for subclass…

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 2785
Decision Date: 14 November 2017

CaseChat Overview and Summary

In *Kang v Minister for Immigration*, Driver J of the Federal Court of Australia considered an application for judicial review concerning a decision by the Minister for Immigration to refuse to grant the applicant a visa. The applicant, Mr Kang, sought to challenge the lawfulness of the Minister's decision.

The central legal issue before the Court was whether the delegate of the Minister had failed to consider relevant considerations and had taken into account irrelevant considerations when assessing Mr Kang's visa application. Specifically, the Court was asked to determine if the delegate's assessment of the applicant's character and the potential risk he posed to the Australian community was vitiated by errors of law.

Driver J reasoned that the delegate's decision-making process had been flawed. The delegate had placed undue weight on certain aspects of the applicant's criminal history while failing to adequately consider mitigating factors and evidence of rehabilitation presented by Mr Kang. The Court applied the principles of administrative law, emphasizing that a decision-maker must undertake a balanced and proportionate assessment of all relevant information. The failure to do so constituted an error of law, rendering the decision invalid.

Consequently, Driver J ordered that the Minister's decision be set aside and remitted to the Minister for reconsideration according to law.

Orders