Kaur v Minister for Immigration - [2014] FCCA 830

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 830

Catchwords:
MIGRATION – Judicial Review of a decision of the Migration Review Tribunal – Skilled (Provisional)(Class VC) Visa – English proficiency – whether the refusal to grant an adjournment of the MRT hearing was unreasonable or otherwise inappropriate.

Legislation:

Migration Act 1958 (Cth), s.360

Migration Regulations 1994, Part 485, reg. 1.15C

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Farook v Minister for Immigration & Anor (2011) FMCA 940

Minister for Immigration & Citizenship v Li [2013] HCA 18

Applicant:

KULDEEP KAUR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

BRG 527 of 2013

Judgment of:

Judge Howard

Hearing date:

9 April 2014

Date of Last Submission:

9 April 2014

Delivered at:

Brisbane

Delivered on:

29 April 2014

REPRESENTATION

Solicitors for the Applicant:

In person

Solicitors for the First Respondents:	Clayton Utz
Solicitors for the Second Respondents:	Clayton Utz

ORDERS

That the application is dismissed.
That the applicant pay the first respondent’s costs in an amount to be fixed by the Court on the date of when the Judgment is delivered.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 527 of 2013

KULDEEP KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant in this case is Ms Kuldeep Kaur. The applicant was born on 15 October 1983 in India.
The applicant arrived in Australia sometime prior to 23 February 2012. On 23 February 2012 the applicant applied for a Visa known as, “Skilled (Provisional) (Class VC). That application was made by the applicant at the same time that her husband made a similar application. It is not relevant for the Court to have regard to the applicant husband’s application.
In relation to the Visa in question – the relevant subclass is subclass 485. The criteria for that subclass of Visa appears in Part 485 of Schedule 2 to the Migration Regulations 1994 – enacted pursuant to the Migration Act 1958.
One of the key requirements is English language proficiency.
On 21 December 2012 the Minister’s Delegate refused to grant to the applicant the Skilled (Provisional) (Class VC) Visa – because the applicant did not have the required English language proficiency.
After the Delegate refused to grant the Visa to the applicant – the applicant applied for a review of the Delegates’ decision. That review was conducted by the Migration Review Tribunal on 5 June 2013. The Tribunal affirmed the decision of the Delegate not to grant to the applicant the Skilled (Provisional) (Class VC) Visa. The written decision of the Migration Review Tribunal was delivered on 5 June 2013.
On 27 June 2013 the applicant filed an application in the Federal Circuit Court of Australia seeking Judicial Review of the decision of the Migration Review Tribunal.
The matter came before His Honour Judge Burnett on 7 August 2013 when His…

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 Minister for Immigration

Details

AGLC: Kaur v Minister for Immigration [2014] FCCA 830
Case: [2014] FCCA 830
Decision Date: 29 April 2014

CaseChat Overview and Summary

This matter concerned an application by Ms Kaur for judicial review of a decision by the Migration Review Tribunal. The applicant sought to challenge the Tribunal's refusal to grant an adjournment of a telephone hearing scheduled for 5 June 2013, and the subsequent decision to proceed with the hearing without an interpreter.

The primary legal issues before the Court were whether the Migration Review Tribunal had acted unreasonably in refusing the adjournment request on medical grounds, and whether it had erred in law by proceeding with the hearing without an interpreter, despite the applicant having initially indicated a need for one.

The Court found that the Tribunal had acted reasonably in refusing the adjournment. It noted that the medical evidence provided only confirmed the applicant's pregnancy and did not demonstrate any incapacity to participate in a telephone hearing. The Court also observed that the applicant had agreed to proceed with the hearing on the scheduled date and had not provided further evidence of her inability to participate. Regarding the interpreter issue, the Court noted that while the applicant had initially ticked a box indicating a need for an interpreter, she had also stated she did not intend to appear. Crucially, the Court found that the applicant demonstrated a reasonably good standard of English, evidenced by her ability to speak and understand the language during telephone discussions with Tribunal staff and her affirmative response to being able to read English. The Court concluded that no jurisdictional error had been made out.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In a decision of the Federal Magistrates Court of Australia (as it then was) in Farook v Minister for Immigration & Anor (2011) FMCA 940 Riley FM (as Her Honour then was) considered the reasonableness of a Tribunal’s decision to refuse an adjournment of a telephone hearing on medical grounds. I note that Her Honour stated at paragraph 47:“There is nothing untoward or unreasonable about the Tribunal seeking medical evidence substantiating a claim that an applicant cannot attend a hearing in a particular way for medical reasons.” The same sentiment expressed by Her Honour is applicable in the present case. I agree with the submission made on behalf of the Minister that the applicant had, indeed, agreed to proceed with the hearing on 5 June 2013. There was no further evidence forthcoming from the applicant to show that she was not capable of partaking in the hearing by telephone on that day. It should be noted that the only medical evidence provided confirms that the applicant was pregnant – not that the applicant was in any way incapacitated. I have come to the conclusion that the Tribunal acted in a reasonable manner. It was reasonable for the Migration Review Tribunal to exercise its discretion and refuse the adjournment. It was reasonable for the hearing to go ahead by telephone on 5 June 2013. No jurisdictional error has been made out in relation to that ground. I have also turned my mind to the question as to whether or not there should have been an interpreter available for the purposes of the telephone hearing on 5 June 2013. In that regard I note that the applicant had originally ticked a box stating that she did not require an interpreter for the Migration Review Tribunal. Mind you it should be noted that in that same form the applicant had said that she did not intend appearing before the Migration Review Tribunal. Whilst it is the case that the applicant ticked a box requesting an interpreter for this hearing and the original hearing was delayed so that an interpreter could be obtained – it is also apparent to the Court that when one has regard to the transcript from 17 February 2014 that the self represented litigant, Ms Kaur (the applicant) is able to speak and understand English to a reasonably good standard. I note from page 3 of the transcript of 17 February 2014 that I asked Ms Kaur whether she can read English and she stated “yes”. In addition, the bundle of documents contains the various case notes to which I have referred earlier herein in these Reasons for Judgment. It is apparent from the case notes dated 30 May 2013 and 3 June 2013 that an employee of the Migration Review Tribunal held telephone discussions with the applicant and during the course of those telephone discussions the applicant conveyed clearly in English to the employee the situation in relation to her pregnancy etc. There was never any mention by the applicant that the hearing before the Migration Review Tribunal should be adjourned because of the lack of an interpreter. Indeed the hearing went ahead without an interpreter.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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