Kaur v Minister for Immigration - [2020] FCCA 2975

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2975

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – alleged family violence – Tribunal finding that the applicant had not made a valid claim of family violence – applicant providing a statutory declaration by a psychologist and a medical report by a clinical psychologist – jurisdictional error established.

Legislation:

Migration Regulations 1994 (Cth)

Cases cited:

Du v Minister for Immigration [2000] FCA 1115

Minister for Immigration v Ejueyitsi (2007) 159 FCR 94

Pham vMinister for Immigration [2018] FCA 1946

Pham v Minister for Immigration & Anor [2017] FCCA 3272

Applicant:

BALJINDER KAUR

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2879 of 2017

Judgment of:

Judge Driver

Hearing date:

2 November 2020

Delivered at:

Sydney

Delivered on:

26 November 2020

REPRESENTATION

Counsel for the Applicant:

Mr A Aleksov

Solicitors for the Applicant:

Saundh, Singh & Smith Lawyers, pro bono publico

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

HWL Ebsworth Lawyers

ORDERS

A writ of certiorari shall issue removing the record of the Administrative Appeals Tribunal decision made on 31 August 2017 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Administrative Appeals Tribunal to redetermine according to law the review application before it.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2879 of 2017

BALJINDER KAUR

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant, Ms Kaur, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) decision made on 31 August 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Ms Kaur a partner visa.
The following statement of background facts is derived from submissions filed on behalf of the Minister on 26 October 2020.
On 14 November 2012 Ms Kaur applied for a partner (Provisional)(Class UF) visa and a partner (Migrant)(Class BC) visa on the basis of her spousal relationship with an Australian citizen. On 29 April 2013 a delegate of the Minister granted Ms Kaur a partner (Provisional) visa.
In September 2015 Ms Kaur’s relationship with her sponsor ceased. An officer in the Minister’s Department invited Ms Kaur to comment on the relationship break down, but she did not respond. Accordingly, on 23 December 2015 the delegate refused to grant Ms Kaur the partner (Migrant)(subclass 100) visa because she did not satisfy the criteria.[1]
[1] Court Book (CB) 263
Ms Kaur made an application to the Tribunal for review of the delegate’s decision.[2] Before the Tribunal, Ms Kaur advanced a claim of having suffered family violence from her ex-partner. It was a requirement for the grant of the subclass 100 visa (clause 100.221(4) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations)) that:

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: [2020] FCCA 2975
Decision Date: 26 November 2020

CaseChat Overview and Summary

The applicant, Ms Kaur, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the Minister for Immigration's refusal of her partner visa application. The refusal was based on the AAT's finding that Ms Kaur had not made a valid claim of family violence, a prerequisite for certain partner visa considerations.

The central legal issue before the court was whether the AAT had committed a jurisdictional error in its assessment of Ms Kaur's claim of family violence. Specifically, the court had to determine if the AAT had adequately considered the evidence provided by Ms Kaur in support of her claim, which included a statutory declaration from a psychologist and a medical report from a clinical psychologist.

Judge Driver found that the AAT had indeed committed a jurisdictional error. The Tribunal's reasoning indicated a failure to properly engage with and assess the substance of the expert evidence presented by Ms Kaur. By not giving due weight to the detailed reports from qualified professionals regarding the alleged family violence, the AAT had failed to conduct a proper review of the evidence before it, thereby vitiating its decision.

Consequently, the court set aside the AAT's decision and remitted the matter to the AAT for redetermination according to law.

Orders