Kaur v Minister for Immigration - [2012] FMCA 1243

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1243

MIGRATION – Review of Migration Review Tribunal’s decision – invitation and notice of hearing sent to authorised recipient on the record, but applicant appointed a new authorised recipient – new authorised recipient details not received by Tribunal – requisite documents sent to authorised recipient on the record – Tribunal complied with statutory requirements – applicant unaware of hearing – hearing conducted in her absence – Tribunal’s decision made on basis of available evidence – applicant claims to have been denied opportunity to argue her case – issue concerned whether funds offered were from an acceptable source – application dismissed.

Migration Act 1958, ss.360, 360A, 362B, 379A(4), 379G(1)
Migration Regulations 1994, cl.572.223(2)(a), Schedule 5A

Kaur v MIAC [2010] FMCA 822
MIAC v Manaf [2009] FCA 963
SZJDS v MIAC [2012] FCAFC 27
Zaman v MIAC [2012] FMCA 620

Applicant:

RAJWINDER KAUR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 765 of 2012

Judgment of:

O'Dwyer FM

Hearing date:

21 December 2012

Date of Last Submission:

21 December 2012

Delivered at:

Melbourne

Delivered on:

21 December 2012

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Brown

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application filed on 25 June 2012 is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $6,417.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 765 of 2012

RAJWINDER KAUR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

This matter comes before me today on an application by Ms Kaur (“the applicant”) to review the decision of the Migration Review Tribunal (“the Tribunal”) on the 22 May 2012; which decision affirmed an earlier decision of the first respondent’s delegate not to grant the applicant a Student (Temporary) (Class TU) visa (“the Visa”).

Background

The applicant is a 33 year old female citizen of India who arrived in Australia in May 2008 as the holder of a subclass 573 Higher Education Sector visa valid until 3 November 2010.
On 31 October 2010 she applied for the Visa. That application was refused and on 3 May 2011 she applied, through a migration agent, to the Tribunal for a review of the delegate’s decision. The applicant was invited to attend the hearing by way of a letter from the Tribunal dated 11 April 2012 to her migration agent, which was held on 22 May 2012. After she failed to attend the hearing, the Tribunal determined the review on the available evidence before it and handed down its decision on the same day, affirming the decision under review.

The legislative framework

For the purposes of this determination there are three aspects of the legislative framework that are pertinent; first, in respect of the legislative imperative to invite an applicant to appear before the Tribunal to give…

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: [2012] FMCA 1243
Decision Date

CaseChat Overview and Summary

The Federal Magistrates Court of Australia considered an application by Rajwinder Kaur against the Minister for Immigration and Citizenship and the Migration Review Tribunal. Kaur sought to review the Tribunal’s decision to affirm the delegate’s refusal to grant her a Student (Temporary) (Class TU) visa. Kaur, an Indian citizen, had applied for the visa in May 2011 after her Higher Education Sector visa expired. The Tribunal held a hearing in her absence and affirmed the delegate’s decision, leading Kaur to argue that she was denied a fair hearing.

The legal issues before the court were whether the Tribunal erred by not sending an effective hearing invitation to Kaur or her new migration agent, whether the Tribunal incorrectly assumed that Kaur would not have access to funds to satisfy the visa requirements, and whether the Tribunal failed to consider that Kaur had already paid her course fees and living expenses. The court had to determine whether the Tribunal’s decision was lawful and if Kaur's rights were properly considered.

O'Dwyer FM found that the Tribunal had complied with the statutory requirements for service of documents, and thus the failure to receive notice did not invalidate the Tribunal's decision. The court also held that the Tribunal was correct in finding that the funds offered by Kaur were not from an acceptable source as they were secured by term deposits that would mature before the visa period ended. The court concluded that the Tribunal did not make an error in its decision and dismissed Kaur’s application with costs.

The court ordered that Kaur pay the costs of the first respondent fixed in the sum of $6,417.

Orders