Kaur v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Home Affairs [2019] FCA 2026

Appeal from: Kaur & Ors v Minister for Home Affairs & Anor [2019] FCCA 1814
File number: ACD 22 of 2019
Judge: STEWARD J
Date of judgment: 4 December 2019
Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court of Australia – where student visas were refused – where the Administrative Appeals Tribunal was not satisfied that the first appellant was a genuine student – whether the Tribunal failed to comply with s 499 of the Migration Act 1958 (Cth) by not treating all the matters set out in Direction No. 69 as mandatory relevant considerations – where grounds of appeal did not relate to judicial review grounds raised before the Federal Circuit Court – where new grounds lacked merit
Legislation:

Migration Act1958 (Cth) s 499

Migration Regulations 1994 (Cth) cl 500.212
Cases cited:

AYJ15 v. Minister for Immigration and Border Protection [2016] FCA 863

AYY17 v. Minister for Immigration and Border Protection (2018) 261 FCR 503

Dranichnikov v. Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389

EBO17 v. Minister for Immigration and Border Protection [2018] FCA 1227

He v. Minister for Immigration and Border Protection (2017) 255 FCR 41

Iyer v. Minister for Immigration and Multicultural Affairs [2001] FCA 929; (2001) 192 ALR 71

Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24

NABE v. Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

Navoto v. Minister for Home Affairs [2019] FCAFC 135

Singh v. Minister for Immigration & Anor [2018] FCCA 3423

SZSSC v. Minister for Immigration and Border Protection (2014) 142 ALD 150

SZWCO v. Minister for Immigration and Border Protection [2016] FCA 51
Date of hearing: 8 November 2019
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 45
Counsel for the Appellants: Mr A Aleksov
Solicitor for the Appellants: TranQuill Legal
Counsel for the First Respondent: Ms R Law
Solicitor for the First Respondent: Clayton Utz
Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs

ORDERS

ACD 22 of 2019
BETWEEN:

SATBIR KAUR

First Appellant

AMRITPAL SINGH

Second Appellant

GURLEEN KAUR (and another named in the Schedule)

Third Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

STEWARD J

DATE OF ORDER:

4 DECEMBER 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs as agreed or assessed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

STEWARD J:

  1. The first appellant is an Indian citizen who came to Australia in March 2009 as the holder of a Higher Education (Class TU) (Subclass 573) visa.  The second appellant is married to the first appellant.  The third and fourth appellants are their children.  Before arriving in Australia, the…

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Details
Case
[2019] FCA 2026
Decision Date

CaseChat Overview and Summary

Kaur and another appellant were involved in a legal dispute against the Minister for Home Affairs. The core of the matter revolved around the refusal of student visas and the subsequent decision by the Administrative Appeals Tribunal which found the first appellant was not a genuine student. The appeal was lodged with the Federal Court of Australia, which was tasked with determining whether the Tribunal had correctly applied the law in making its decision. Specifically, the court needed to decide if the Tribunal had failed to treat certain matters as mandatory relevant considerations, as outlined in Direction No. 69 of the Migration Act 1958 (Cth). The appellants sought to introduce new grounds of appeal that had not been raised during the Federal Circuit Court proceedings, but the court found these new grounds to be without merit.

The court examined the procedural history and highlighted that the appellants had multiple opportunities to present their case and identify their grounds of review during the Federal Circuit Court proceedings. These opportunities included the filing of the originating application and subsequent orders that allowed for the submission of amended applications and outlines of submissions. The appellants failed to take advantage of these chances, leading the court to emphasise the importance of finality in litigation, particularly given the protracted nature of this case which had been ongoing since 2016. The court concluded that there was a significant public interest in bringing this matter to a close.

In light of the foregoing, the court determined that leave should not be granted to rely on the proposed new grounds of appeal. The appeal was dismissed with costs as agreed or assessed. This decision underscores the importance of timely and complete presentation of grounds for review in administrative law proceedings.

Orders

Orders of the court

1. The appeal be dismissed with costs as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Finally, as the primary judge highlighted, the appellants had three opportunities to put their case and identify their grounds of review in the Federal Circuit Court. The first opportunity was the filing of the originating application; the second and third opportunities were accorded through orders made by the primary judge in September 2018 which allowed for the filing of “any amended application giving complete particulars of each ground of review relied upon” and “an outline of submissions … prior to the hearing date”. The appellants did not seize those opportunities. The appellants have now spent over 10 years in Australia on student visas, and more recently in seeking such a visa. They have been fighting that issue since 2016. Given the lack of merit in the two proposed grounds of appeal, finality of litigation assumes greater prominence here. In my view, there is a clear public interest in bringing this matter to an end.Conclusion For the foregoing reasons, leave is not granted to rely on the proposed new grounds. This appeal should be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.