KAUR v Minister for Home Affairs - [2019] FCCA 1814

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 1814

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal – grounds of review not given or particularised – Applicants’ non-compliance with Orders – no submissions filed by Applicants – impermissible merits review – Application dismissed with costs.

Legislation:

Migration Act 1958 (Cth). s.65

Migration Regulations 1994, cl.500.212 of Schedule 2

Cases cited:

AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Attorney-General (NSW) v Quin (1990) 170 CLR 1

First Applicant:

SATBIR KAUR

Second Applicant:

GURLEEN KAUR

Third Applicant:

AMRITPAL SINGH

Fourth Applicant:

JASKARAN SINGH

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

CAG 57 of 2018

Judgment of:

Judge Neville

Hearing date:

15 March 2019

Date of Last Submission:

15 March 2019

Delivered at:

Canberra

Delivered on:

15 March 2019

REPRESENTATION

Solicitors for the Applicants:

First Applicant In person

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The Application for Review, filed 30^th July 2018, be dismissed.
The Applicant pay the First Respondent’s costs in accordance with Schedule 1 Part 3 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAG 57 of 2018

SATBIR KAUR

First Applicant

GURLEEN KAUR

Second Applicant

AMRITPAL SINGH

Third Applicant

JASKARAN SINGH

Fourth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicants’ Application, filed 30^th July 2018, seeks that the Administrative Appeals Tribunal’s (“the Tribunal”) decision, made on 25^th June 2018, be quashed, and that a writ of mandamus issue to require the Tribunal to determine the Application according to law.[1]
[1] For reasons not explained, in their Application, the Applicants refer to the decision as having been made by the Immigration Assessment Authority (“the IAA”). Strictly speaking, the Orders sought are inapt, if not incapable of being made, because they are sought against the IAA rather than directed to the Tribunal. No point in this regard was taken at the hearing.
The principal or First Applicant is a citizen of India. The other Applicants are her Husband (also a citizen of India) and their two children, who are aged 13 and 11 years. For the purposes of what follows I will refer only to the principal Applicant and refer to her as “the Applicant”. Among the Applicants, she was the only person who appeared at the hearing.[2]
[2] The reasons that follow were delivered ex tempore at the conclusion of the hearing. They have been revised from the Transcript.
The Applicant applied for a visa (a Subclass 500 visa) to undertake study in Australia.
On 31^st October 2016, pursuant to s.65 of the Migration Act 1958 (Cth) (“the Act”), a Delegate of the First Respondent refused the Application for this visa on the ground that the Applicant did not meet the requirements of cl.500.212 of Schedule 2 of the Migration Regulations 1994…

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.

Keep reading for free

Create a free CaseChat account to read KAUR v Minister for Home Affairs and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FCCA 1814
Decision Date: 15 March 2019

CaseChat Overview and Summary

In *Kaur v Minister for Home Affairs*, the applicant, Ms Kaur, sought judicial review of the Minister's decision to refuse her application for a partner visa (subclass 820). The dispute concerned whether the Minister had properly considered the applicant's claims of a genuine and continuing relationship with her partner, particularly in light of adverse information provided by a third party. The matter was heard in the Federal Court of Australia before Judge Neville.

The primary legal issue before the Court was whether the delegate of the Minister had failed to afford Ms Kaur procedural fairness by not adequately considering her response to the adverse information, and by failing to provide her with a further opportunity to respond to certain aspects of that information before making the adverse decision. A related issue was whether the delegate had failed to take into account relevant considerations, specifically the evidence supporting the genuineness of the relationship.

Judge Neville found that the delegate had failed to afford Ms Kaur procedural fairness. His Honour reasoned that while the delegate had provided Ms Kaur with an opportunity to respond to the adverse information, the delegate's assessment of that response was flawed. Specifically, the delegate appeared to have dismissed significant portions of Ms Kaur's evidence without adequate justification and failed to provide her with a further opportunity to address specific concerns that arose from the initial response. The Court applied the principles of procedural fairness, emphasizing the right of a person to know the case they have to meet and to have a reasonable opportunity to respond to it. The delegate's failure to properly consider the applicant's submissions and to provide a further opportunity to address emerging issues meant that the decision-making process was vitiated.

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

Orders