Kaur v Minister for Immigration - [2012] FMCA 438

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 438

MIGRATION – Application for review of decision by Migration Review Tribunal – failure to invite the applicant to respond to information – failure to consider adjournment – jurisdictional error – application granted.

Migration Act 1958 (Cth), ss.116, 119, 359A, 359AA, 359C, 360, 424A, 424AA, 476, Div.5
Migration Regulations 1994 (Cth), r.2.43, Sch.8
Education Services for Overseas Students Act 2000 (Cth), s.20

SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415
Saba Bros Tiling Pty Ltd v Minister for Immigration & Anor [2010] FMCA 598
Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd [2011] FCA 233
SZNKO v Minister for Immigration and Citizenship [2010] FCA 297
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592
Minister for Immigration & Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507
SZNKO v Minister for Immigration & Anor [2009] FMCA 978

MZYHF v Minister for Immigration and Citizenship [2010] FCA 1250
SZLPO v Minister for Immigration and Citizenship (2009) 177 FCR 1

Applicant:

NAVPREET KAUR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2081 of 2011

Judgment of:

Nicholls FM

Hearing date:

3 April 2012

Date of Last Submission:

3 April 2012

Delivered at:

Sydney

Delivered on:

29 May 2012

REPRESENTATION

Appearing for the Applicant:

Mr N Dobbie

Solicitors for the Applicant:

Dobbie & Devine Immigration Lawyers

Appearing for the Respondents:

Mr O Jones

Solicitors for the Respondents:

Clayton Utz

ORDERS

A writ in the nature of certiorari quashing the decision of the second respondent made on 11 August 2011.
A writ in the nature of mandamus compelling the second respondent to reconsider the application according to law.
The first respondent pay the applicant’s costs set in the amount of $6,240.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2081 of 2011

NAVPREET KAUR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 15 September 2011 under s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), made on 11 August 2011, to affirm the decision of the Minister’s delegate to cancel the applicant’s visa.

Background

Background to this case is contained in the bundle of relevant documents filed by the Minister (Court Book – “CB”).
Ms Navpreet Kaur (“the applicant”) was granted a Student (Temporary) class TU subclass 572 Vocational Education and Training Sector visa (“the visa”) on 3 June 2010. On 13 December 2010 her education provider (Sapphire International Pty Ltd, trading as Lamart College of Technology…

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 438
Decision Date: 29 May 2012

CaseChat Overview and Summary

Kaur has brought an application against the Minister for Immigration for judicial review of a decision made by the Migration Review Tribunal. The central issue in the case is whether the Tribunal properly considered its statutory obligations when reviewing the Minister’s decision to cancel the applicant’s visa. The applicant contends that the Tribunal failed to comply with its obligations under sections 359A and 359AA of the Migration Act 1958 (Cth) when it reviewed the delegate’s decision. These sections require the Tribunal to consider whether the applicant had a genuine opportunity to address certain issues before the delegate made the decision.

The court examined the facts of the case to determine if the Tribunal complied with its obligations. The applicant argued that she was not given an opportunity to address certain issues raised by Lamart prior to the issuance of a section 20 notice. The Tribunal did not reference the "PRISMS" records in the hearing transcript or in its own account of the hearing, despite them being relevant to the applicant's claims. The court found that the Tribunal did not properly consider its obligations under sections 359A and 359AA of the Act.

The court ruled in favour of the applicant, finding that the Tribunal did not comply with its statutory obligations. The court quashed the decision of the Migration Review Tribunal made on 11 August 2011, and ordered that the decision be reconsidered according to law. The court also ordered the Minister to pay the applicant's costs in the amount of $6,240.00.

Orders

Orders of the court

A writ in the nature of certiorari quashing the decision of the second respondent made on 11 August 2011.

A writ in the nature of mandamus compelling the second respondent to reconsider the application according to law.

The first respondent pay the applicant’s costs set in the amount of $6,240.00.

Background

Background to the litigation

The Minister relied in this regard, also, on SZNKO at [29]:“[29] Compliance with s 424AA(b)(iii) and/or (iv), does not require a Tribunal Member to repeat the very words employed in s 424AA(b)(iii) in some ritualistic or ‘parrot-like recantation’. Indeed, cases may be envisaged where to do so may not meaningfully convey to an applicant the opportunity sought to be secured by those provisions. Compliance with those provisions must necessarily depend upon the facts and circumstances of the claims being advanced before the Tribunal, the ability of any particular applicant to properly avail himself of the opportunity to be heard before the Tribunal, and the limited procedural protections prescribed by the Commonwealth legislature.”[Emphasis added.] The Minister focuses on the first part of that paragraph. In my view, regard must be had to that part emphasised above. The question now therefore is to ask what are the facts and circumstances of this case to which regard must be had to ascertain if the Tribunal complied with its obligations? First, as Mr Dobbie submits, attention must be given to the circumstances which gave rise to the Tribunal having regard to the Department’s records and the “PRISMS” records (see at [53] at CB 62 and [9] above). The applicant maintained at all times that she was a “genuine student” (see, for example, CB 35.9). She maintained that while she received the s.20 notice, she did not receive earlier communications from Lamart relevant to the circumstance that led to the issuing of the s.20 notice (see for example CB 37.3). The import being that she was denied the opportunity to address Lamart’s concerns at a time prior to the issuing of the s.20 notice. The delegate’s decision did make reference to having received information from Lamart as to their claimed attempts at contacting the applicant to offer counselling to her about attendance (CB 21.6) and information “over the phone” that “the warning letter” and “notice of intention to report” were all sent to the applicant at the same address as the s.20 notice (CB 21.7). In relation to that issue, the Tribunal reported on the applicant’s relevant submission made through her representative ([37] at CB 58 and [42] at CB 60). However unlike, for example, the discharge of the Tribunal’s obligation pursuant to s.360 of the Act to raise dispositive issues at the hearing unless such issues arise from the delegate’s decision (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592), the obligation under s.359A, and if engaged s.359AA, is not addressed by any reference to the delegate’s decision. The obligation in s.359A and s.359AA relies exclusively on action taken by the Tribunal during the conduct of the review. In this regard the transcript of the hearing, and indeed the Tribunal’s own account of the hearing, reveal that no reference was made to the “PRISMS” records by the Tribunal, whatever these may be. (They remained unexplained before the Court and, for that matter, by the Tribunal, although general reference was made to information concerning letters sent by Lamart to the applicant.)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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