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Kaur v MIBP

Kaur v MIBP

Case [2017] FCCA 564 29 March 2017

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FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 564

Catchwords:
MIGRATION – Judicial review – decision of former Migration Review Tribunal – refusal of Regional Employer Nomination (Permanent) (Class RN) visa – whether compliance with requirement to give information orally or in writing – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.65, 359AA, 359A, 476, 478(a)

Migration Regulations 1994 (Cth), Sch.1. para.1114C(3)(d), Sch.2, cl.187.233, reg.5.19

Cases cited:

Dhawan v Minister for Immigration & Anor [2016] FCCA 3359
Dogra v Minister for Immigration & Anor [2016] FCCA 1936

Hasan & Ors v Minister for Immigration & Anor [2016] FCCA 1049

Islam v Minister for Immigration & Anor [2016] FCCA 304
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1
Uddin v Minister for Immigration & Anor [2015] FCCA 1591
Wadhwa v Minister for Immigration & Anor [2015] FCCA 1409
Yeap v Minister for Immigration & Anor [2016] FCCA 1173

Applicant:

MANPREET KAUR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 332 of 2015

Judgment of:

Judge Antoni Lucev

Hearing date:

21 March 2017

Date of Last Submission:

21 March 2017

Delivered at:

Perth

Delivered on:

29 March 2017

REPRESENTATION

For the Applicant:

In person (with an interpreter made available)

Counsel for the First Respondent:

Mr PR Macliver

For the Second Respondent:	Submitting appearance, save as to costs
Solicitors for the Respondents:	Australian Government Solicitor

ORDERS

That the application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 332 of 2015

MANPREET KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

On 17 July 2015 the applicant lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal”) to affirm a decision of a delegate (“Delegate”) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse the applicant a Regional Employer Nomination (Class RN) Subclass 187 visa (“Subclass 187 Visa”).

Background

The background to the Judicial Review Application is as follows:
a)on 29 May 2014 Blueshell Holdings Pty Ltd as trustee for the Hillarys Unit Trust (“Blueshell”) lodged a Regional Employer Nomination (Permanent) (Class RN) nomination application in respect of the applicant for the position of “Cafe and Restaurant Manager” at Blueshell’s Toscanini’s on Quay restaurant at Hillarys Boat Harbour (the “Employer Nomination”). That application was assigned Nomination…

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.

Continue reading Kaur v MIBP

Details

AGLC: Kaur v MIBP [2017] FCCA 564
Case: [2017] FCCA 564
Decision Date: 29 March 2017

CaseChat Overview and Summary

In *Kaur v MIBP*, the applicant, Ms Kaur, sought judicial review of a decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) to refuse her visa application. The dispute concerned the lawfulness of the Minister's decision. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had failed to consider relevant material when assessing Ms Kaur's application, specifically evidence relating to her alleged victimisation and her subjective fear of harm. The Court was required to determine if the delegate's assessment of the evidence was reasonable and whether the delegate had properly applied the relevant legislative criteria for the visa.

The Court found that the delegate had failed to adequately consider the evidence presented by Ms Kaur regarding her subjective fear of harm and the circumstances of her alleged victimisation. The delegate's assessment was found to be based on an incomplete and unreasonable interpretation of the material before them. The Court applied the principles of administrative law, including the requirement for decision-makers to consider all relevant evidence and to provide reasons that are not illogical or irrational.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for reconsideration according to law.

Orders