Kaur v Minister for Immigration - [2013] FCCA 1162

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1162

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a skilled residence visa – whether the Tribunal misinterpreted the law, made an arbitrary or irrational decision or breached s.360 of the Migration Act 1958 (Cth) considered.

Legislation:

Acts Interpretation Act 1901 (Cth), s.15AB
Legislative Instruments Act 2003 (Cth), s.13
Migration Act 1958 (Cth), ss.31, 97, 360, 425, 366B, 366D, 504
Migration Amendment Regulations 2011(No 1)
Migration Regulations 1994 (Cth)

Clements v Bull (1953) 88 CLR 572
Guo v Minister for Immigration (2009) 176 FCR 83
Kaur & Ors v Minister for Immigration [2013] FCCA 933
Lakhani v Minister for Immigration [2013] FCCA 451
Mala v Minister for Immigration [2005] FMCA 556
Minister for Immigration v Li (2012) 202 FCR 387
Minister for Immigration v Li [2013] HCA 18
Minister for Immigration v SZMDS (2010) 240 CLR 611

Quarm v Minister for Immigration (2008) 216 FLR 192

Qui v Minister for Immigration (1994) 55 FCR 439
South Australia v Tanner (1989) 166 CLR 161
SZBEL v Minister for Immigration (2006) 231 ALR 592

SZOOR v Minister for Immigration (2012) 202 FCR 1

First Applicant:

MANINDER KAUR

Second Applicant:

GURSIMRAN SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 73 of 2013

Judgment of:

Judge Driver

Hearing date:

21 August 2013

Delivered at:

Sydney

Delivered on:

4 October 2013

REPRESENTATION

Solicitors for the Applicant:

Mr N Dobbie

Dobbie & Devine Immigration Lawyers

Counsel for the Respondents:

Mr J Kay Hoyle

Solicitors for the Respondents:

Clayton Utz

ORDERS

The title of the first respondent be amended to “Minister for Immigration and Border Protection”.
A writ of certiorari shall issue removing the record of the Migration Review Tribunal decision made on 20 December 2012 into this Court for the purpose of quashing it.
An order of mandamus shall issue requiring the Migration Review Tribunal to redetermine the review application before it according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG73 of 2013

MANINDER KAUR

First Applicant

GURSIMRAN SINGH
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 20 December 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants Skilled Residence (Class VB) visas.
The following statement of background facts is derived from the submissions of the parties.
The applicants are both citizens of India. The second applicant (Mr Singh) is a party to the proceedings solely by virtue of his inclusion as a member of the family unit; it is therefore the first applicant (Ms Kaur) who must satisfy the court that the Tribunal fell into error.
On 30 December 2010, the applicants lodged an application for a Class VB (subclass 885 and subclass…

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 1162
Decision Date: 4 October 2013

CaseChat Overview and Summary

This matter concerned an application for judicial review brought by the applicants against the Minister for Immigration. The applicants contended that the Administrative Appeals Tribunal (AAT) had failed to properly consider certain issues in its decision, specifically regarding the applicant's care of a child and its impact on another individual's ability to work, and the retrospective application of amended visa regulations. The case was heard by Judge Driver.

The primary legal issues before the court were whether the Tribunal had erred in its application of section 360(1) of the Migration Act 1958 (Cth) by failing to provide a meaningful opportunity for the applicants to present evidence and argument, and whether the Tribunal had correctly considered the impact of amended regulations on the applicants' visa application, particularly concerning a three-year banning period. Additionally, the court considered whether the Tribunal had erred by limiting its consideration to the relevant Engagement Standards (ES) and whether a minor error in referencing a waiver condition within the ES constituted a reviewable error.

The court reasoned that section 360(1) requires an invitation to present a case to be meaningful, providing a real chance to do so. In this instance, the applicants, who were legally represented, had identified the issue of the applicant's care of a child and its effect on another person's work capacity. However, the court found that the applicants had asserted this proposition but failed to provide the necessary evidence to prove it, which underpinned the Tribunal's conclusion. Therefore, the court found no failure in relation to section 360. Regarding the amended regulations, the court affirmed its previous judgment that the amendments did not remove pre-existing entitlements or impose additional burdens retrospectively, nor did they destroy existing rights or impose past liabilities. The court also noted a minor error in the Tribunal's reference to a waiver condition but concluded it was a simple slip and did not affect the overall decision, as the Tribunal had correctly considered the applicants' arguments regarding financial and emotional support.

The court rejected the grounds of review, finding no error on the part of the Tribunal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicants state that the Tribunal was “obligated” to put the matters identified at [99] of the decision. The Minister submits that, as the foregoing analysis demonstrates, that is a misconception about what the Tribunal did. In Minister for Immigration v Li[41], a plurality of the High Court (Hayne, Kiefel and Bell JJ) identified, obiter, the purpose of s.360(1) as[42]:to provide an applicant with the opportunity to present evidence and argument relating to the issues arising in connection with the decision under review….Section 360(1) requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case.” (emphasis added) [41] [2013] HCA 18[42] at [60]-[61] In this case, the applicants, who were legally represented, delineated the issue of the connection between Ms Kaur’s care of Ms Begum’s child and Ms Begum’s ability to work. Framed in that way, it was incumbent on the applicants to provide evidence to show that Ms Begum would be unable to work without the presence of Ms Kaur. That proposition was asserted but never proved and it was that failure that underpinned the Tribunal’s conclusion at [99] of the decision. It follows that the applicants were provided with an opportunity to present evidence but failed to do so in the manner required to prove their case. Therefore, no failure in relation to s.360 arose. On this issue, in my earlier judgment in Kaur I said[43]:I also reject Ground 1(ii). The amending regulations relied upon by the applicants did not remove any pre-existing visa entitlement the applicants had. Nor did the Regulations impose any additional burden by way of a time of application criterion. The effect of the amendments was to render material at the time of decision something which had occurred before the amendments had taken effect. It is true that the amending regulations introduced a substantial deterrent in the form of the three year banning period where PIC 4020 was not satisfied. However, the applicants did not have to pursue their visa application in the light of the amendments. They could have withdrawn it. In my view, and consistently with the decision of the High Court in Toowoomba Foundry Pty Ltd the operation of the amendments did not destroy as at a past date any rights which then existed and neither did it impose at a past date any liability which did not then exist. I conclude that the amendments did not take effect before the date of registration of the Regulations and hence they did not offend against s.12(2) of the Legislative Instruments Act. Neither do I think it necessary to consider any common law presumption against any retroactive operation. (footnote omitted)[43] op cit I have not changed my opinion. I reject Ground 1(i) for the same reasons as I rejected the argument in the earlier case of Kaur. Further, I agree with the Minister’s submissions referred to at [38]-[41] above. The issue in relation to this ground is whether the Tribunal erred by limiting its consideration to the ES. The Tribunal, at [95] of its reasons[44] discussed the ES and correctly noted that it was not bound by it. There is an error in the Tribunal’s reference to the waiver condition in that the Tribunal used the conjunctive “and” rather than the disjunctive “or”. This appears to have been a simple slip as the correct formulation was used elsewhere in the Tribunal’s reasons. At [97][45] the Tribunal referred to three examples from the ES of compelling or compassionate reasons for waiving the requirements of PIC 4020. The Tribunal recognised at [98] that a relevant reason for waiver advanced on behalf of the applicants was that family members in Australia would be left without financial or emotional support. [44] CB185[45] CB186

Ratio Decidendi

Legal Principle Established

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