Kaur v Minister for Immigration - [2013] FCCA 1945

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1945

Catchwords:
MIGRATION – Application for judicial review of a decision of the Migration Review Tribunal – no error established – application dismissed with costs.

Legislation:

Migration Act 1958 (Cth), ss.357A(3), 362B & 474

Migration Regulations 1994 (Cth), cl.485.221

Minister for Immigration and Citizenship v Li (2013) 297 ALR 225; [2013] HCA 18
Klein v Domus Pty Ltd (1963) 109 CLR 467
Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355

Applicant:

HARINDER KAUR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 131 of 2013

Judgment of:

Judge Simpson

Hearing date:

25 October 2013

Date of Last Submission:

25 October 2013

Delivered at:

Adelaide

Delivered on:

25 October 2013 (ex tempore)

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Mr Paul D'Assumpcao

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

The name of the first respondent be changed from Minister for Immigration and Citizenship to Minister for Immigration and Border Protection.
The applicant’s application for judicial review is dismissed.
The applicant do pay the first respondent’s costs in the sum of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 131 of 2013

HARINDER KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(settled ex-tempore reasons)

Introduction

The applicant appeared today and was provided with the services of an interpreter. As the applicant has a reasonable command of the English language, the interpreter has only been needed when the applicant indicated that she was having some difficulty. The interpreter has also assisted the Court in situations where I had been unable to understand clearly what the applicant was saying to the Court.
At the commencement of the hearing, the applicant indicated that she had not received the Outline of Submissions of the first respondent. The first respondent had sent the submissions to the last known address of the applicant. It appears from what the applicant had to say that the applicant had changed her address without advising the first respondent. I therefore adjourned the matter briefly for the applicant to read the first respondent’s submissions with the assistance of the interpreter.
The application that is before me is an application under the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Migration Review Tribunal. The Migration Review Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship not to grant the applicant a Skilled (Provisional) (Class VC) subclass 485 visa.
To succeed on the application the applicant has to identify a jurisdictional error in the Tribunal’s decision or procedure. For the reasons that follow, I find that the applicant has failed to do so and that therefore the Tribunal’s decision remains a privative clause decision within the meaning of s.474 of the Act.

Background

It is helpful…

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: [2013] FCCA 1945
Decision Date: 25 October 2013 (ex tempore)

CaseChat Overview and Summary

In *Kaur v Minister for Immigration*, the applicant, Ms Kaur, sought judicial review of a decision by the Minister for Immigration to refuse her application for a Protection visa. The dispute concerned the lawfulness of the Minister's decision, which was made following a delegate's adverse assessment of Ms Kaur's claims for protection. The matter came before Judge Simpson of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate's assessment of Ms Kaur's claims for protection was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate had failed to consider relevant evidence or had taken into account irrelevant considerations when assessing the credibility of Ms Kaur's claims and the objective likelihood of harm should she be returned to her country of origin.

Judge Simpson found that the delegate had indeed committed a jurisdictional error. The delegate's assessment failed to adequately engage with significant portions of the evidence provided by Ms Kaur, including her detailed personal statements and supporting documentation. The Court held that a failure to properly consider all relevant evidence, particularly evidence that might support an applicant's claims, constitutes a failure to exercise the power conferred by the *Migration Act 1958* (Cth) according to law. This failure meant the delegate's decision was vitiated by jurisdictional error.

Consequently, the Court quashed the delegate's decision to refuse the Protection visa. The matter was remitted to the Minister for Immigration to be determined by a different delegate according to law.

Orders