Kaur v Minister for Immigration - [2011] FMCA 367

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION

[2011] FMCA 367

MIGRATION – review of delegate’s decision to refuse to waive condition 8503 of applicant’s visa – whether delegate’s decision affected by jurisdictional error.

Migration Act 1958 (Cth), s41

Migration Regulations 1994 (Cth), Condition 8503 of Schedule 8, sub-regulation 2.05(4)

Hager v Minister for Immigration [2010] FMCA 942
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 197 CLR 510

Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24

Applicant:

MARGARET KAUR

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

SYG 835 of 2011

Judgment of:

Emmett FM

Hearing date:

18 May 2011

Date of Last Submission:

18 May 2011

Delivered at:

Sydney

Delivered on:

18 May 2011

REPRESENTATION

Applicant appeared in person

Counsel for the Respondent:

D. Hughes

Solicitors for the Respondent:

A. Wood (Clayton Utz)

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 835 of 2011

MARGARET KAUR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of a delegate of the respondent (“the Delegate”), made on 15 April 2011, refusing to waive condition 8503, being a condition of the applicant’s visa.
The relevant background to this application is accurately set out by counsel for the respondent, Mr Hughes, in his written submissions as follows:
“5. The Applicant is a citizen of Fiji. The Applicant entered Australia seven times between 27 October 2002 and 24 October 2009 on various temporary visas, the final time on a Visitor visa (Subclass 676). Her current visa, a Bridging Visa E (Subclass 050), required her departure on or by 1 May 2011. She is currently in Australia unlawfully.
6. The Applicant’s Visitor visa was subject to condition 8503. That condition is set out in Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations) and is in the following terms:
“The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.” ”

RECORDED : NOT TRANSCRIBED

In support of her application this morning, the applicant read two affidavits, the first sworn by her on 28 April 2011 and filed on

29 April 2011. The second affidavit was sworn on 16 May 2011 and filed on 16 May 2011. The first affidavit annexes a copy of the Delegate’s decision, dated 15 April 2011, together with copies of letters sent to the Delegate in support of the applicant’s application for a waiver of condition 8503 of her visa. The respondent tendered similar documents, being part of a bundle of documents identified as “Court Book”, filed on 16 May 2011 and marked Exhibit 1R.
By letter dated 2 April 2011, the applicant applied to the Minister for a waiver of condition 8503 (“Waiver Request”).
The applicant’s Waiver Request sought…

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 [2011] FMCA 367
Case: [2011] FMCA 367
Decision Date: 18 May 2011

CaseChat Overview and Summary

Margaret Kaur, the applicant, sought judicial review of a decision by the Minister for Immigration and Citizenship's delegate to refuse her request to waive condition 8503 of her visa. The Federal Magistrates Court considered the matter and determined the legal issues presented by Kaur's application. The court had to decide whether the delegate's decision to refuse the waiver was affected by a jurisdictional error.

The court considered the relevant statutory provisions, including section 41 of the Migration Act 1958 and sub-regulation 2.05(4) of the Migration Regulations 1994. The court noted that the delegate's decision was based on the absence of compelling and compassionate circumstances that had developed over which Kaur had no control and resulted in a major change to her circumstances. The court found that the delegate had carefully considered Kaur's claims and the relevant legislation, and that the decision did not appear to be affected by a jurisdictional error. The court held that disagreements with the delegate's findings and conclusions were not sufficient to demonstrate a jurisdictional error and that the decision was a privative clause decision with which the court had no power to interfere.

The court dismissed Kaur's application for judicial review and ordered that no orders be entered in respect of the matter until the court had an opportunity to settle its reasons. The court also directed that the proceeding should be dismissed with costs. The applicant's visa condition 8503 remained in effect, and she was required to depart Australia on or before the expiration of her Bridging visa E on 15 April 2011.

Orders