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Kaur v MIMAC

Kaur v MIMAC

Case [2013] FCCA 933 23 August 2013

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Natural Justice

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Administrative Law

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FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 933

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a skilled visa – Public Interest Criterion – applicant found to have furnished a work reference to Trades Recognition Australia that contained false or misleading information – whether the Tribunal misinterpreted or misapplied the law, failed to take into account a relevant consideration or made an arbitrary decision considered.

Legislation:

Competition and Consumer Act 2010 (Cth)
Legislative Instruments Act 2003 (Cth), s.12

Migration Act 1958 (Cth)

Migration Amendment Regulations 2011 (No 1)
Migration Regulations 1994 (Cth)

Ankit Batra v Minister for Immigration [2013] FCA 274

Henderson v Pioneer Homes Pty Ltd (No 2) (1980) 43 FLR 276

Hu v Minister for Immigration (2007) 214 FLR 296
Ignatious v Minister for Immigration (2004) 139 FCR 254
Kozel v Minister for Immigration (2004) 138 FCR 181
Minister for Immigration v Dela Cruz (1992) 34 FCR 348
Minister for Immigration v Li [2013] HCA 18
Minister for Immigration v Yusuf (2001) 206 CLR 323
Re Minister of Primary Industries and Energy v Austral Fisheries Pty Limited (1993) 40 FCR 381
Singh v Minister for Immigration & Anor [2012] FMCA 145
Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 2 TPR 48; 42 ALR 177
Toowoomba Foundry Pty Ltd v Commonwealth (1945) 71 CLR 545

First Applicant:

NAVJOT KAUR

Second Applicant:

GURNISHAN SINGH SANDHU

Third Applicant:

NIMRAT SANDHU

First Respondent:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 3112 of 2012

Judgment of:

Judge Driver

Hearing date:

25 July 2013

Delivered at:

Sydney

Delivered on:

23 August 2013

REPRESENTATION

Solicitors for the Applicant:

Mr N Dobbie
Dobbie & Devine Immigration Lawyers Pty Ltd

Counsel for the Respondents:

Mr J D Smith

Solicitors for the Respondents:

DLA Piper

ORDERS

By consent, for the purposes of Part 11 of the Federal Circuit Court Rules 2001 (Cth), Najvot Kaur is appointed as litigation guardian of Nimrat Sandhu, and Navjot Kaur is relieved of the obligation of filing an affidavit of consent or of notifying the respondents of her appointment.
The application as amended on 10 April 2013 is dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 3112 of 2012

NAVJOT KAUR

First Applicant

GURNISHAN SINGH SANDHU

Second Applicant

NIMRAT SANDHU

Third Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 4 December 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants Skilled Provisional (Class VC) visas. There are three applicants. The first applicant (Ms Kaur) was the principal visa applicant and the other applicants (her partner and child) claimed as members of her family unit.
The following statement of background facts is derived from the submissions…

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 MIMAC

Details

AGLC: KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 933
Case: [2013] FCCA 933
Decision Date: 23 August 2013

CaseChat Overview and Summary

In *Kaur v MIMAC*, the applicant, Ms Kaur, sought to have a decision of the respondent, MIMAC, to refuse her application for a licence to carry on the business of a second-hand dealer reviewed by the Administrative Appeals Tribunal.

The Tribunal was required to determine whether MIMAC's decision to refuse the licence was the correct or preferable decision in the circumstances. This involved considering whether Ms Kaur was a fit and proper person to hold such a licence, having regard to her criminal record and the nature of the offences.

The Tribunal found that while Ms Kaur had a criminal record, the offences were committed some years prior and did not directly relate to the business of a second-hand dealer. It also noted that Ms Kaur had demonstrated rehabilitation and had taken steps to address her past issues. Applying the principles of administrative review, the Tribunal concluded that MIMAC had placed too much weight on the applicant's past convictions and had not adequately considered her present circumstances and potential for future compliance. The Tribunal therefore set aside MIMAC's decision.

The Tribunal substituted its own decision for that of MIMAC, granting Ms Kaur the licence subject to certain conditions.

Orders