Kaur v Minister for Immigration - [2010] FMCA 822

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 822

MIGRATION – Application to review decision of Migration Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R, 359A, 360, 360A, 362, 362B, 368, 379A, 379C, 379G, 426A, 432

Migration Regulations 1994 (Cth), cll.572.222, 572.231 of Schedule 2

Applicant:

VARINDER KAUR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG445 of 2010

Judgment of:

Barnes FM

Hearing dates:

19 August 2010, 30 September 2010

Delivered at:

Sydney

Delivered on:

30 September 2010

REPRESENTATION

Solicitors for the Applicant:

Newman & Associates

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,900.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG445 of 2010

VARINDER KAUR

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Migration Review Tribunal dated 3 February 2010 affirming a decision of the delegate of the first respondent not to grant the applicant, Ms Kaur, a Student (Temporary) (Class TU) visa.
The applicant, a citizen of India, arrived in Australia in 2007 as the holder of a student visa. In 2008 she applied for a further student visa. Her migration agent provided the Department of Immigration with documents including a Confirmation of Enrolment, an Offer of Course Placement for a Diploma of Business Administration course at Inter-Continental Colleges starting in October 2008, an IELTS test result showing an overall band score of 5, as well as evidence of completion of an English for Vocational Education course and a Commercial Cookery course.
The delegate of the first respondent refused the application, finding that Ms Kaur did not meet the criteria in Part 572 of Schedule 2 to the Migration Regulations 1994 (Cth) in relation to evidence of her English language proficiency.
The applicant sought review by the Tribunal. Relevantly, in her application for review she provided…

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: [2010] FMCA 822
Decision Date

CaseChat Overview and Summary

The applicant, Ms Kaur, a citizen of India, sought judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 3 February 2010 affirming a decision of the delegate of the Minister for Immigration and Citizenship (the Minister) not to grant the applicant a Student (Temporary) (Class TU) visa. The applicant arrived in Australia in 2007 as the holder of a student visa and applied for a further student visa in 2008. The delegate of the Minister refused the application, finding that Ms Kaur did not meet the criteria in relation to evidence of her English language proficiency. The Tribunal affirmed the delegate's decision and the applicant sought judicial review of the Tribunal's decision.

The applicant's grounds for review were (1) that the Tribunal erred in law when it sought to correct factual errors by means of a corrigendum, (2) that the Tribunal erred in law when it allowed a Tribunal clerk to encroach upon the member's jurisdictional domain in that a clerk decided what should be done by the Tribunal in the light of legally significant errors and informed the applicant's representative of what the Tribunal would do, the Tribunal ultimately doing exactly what the clerk had determined, and (3) that the Tribunal erred in law by not inviting the applicant to a further hearing on the basis of the error in the Tribunal's decision.

In relation to ground (1) the court found that the Tribunal was not empowered to issue a corrigendum correcting a factual error but the Tribunal was not functus officio because there was no jurisdictional error in the decision as it stood on 3 February 2010. In relation to ground (2) the court found that the Tribunal was not functus officio because there was no jurisdictional error in the decision as it stood on 3 February 2010. The court found that a Tribunal officer expressing a view about what a Tribunal will do was not jurisdictional error. In relation to ground (3) the court found that the Tribunal was not functus officio because there was no jurisdictional error in the decision as it stood on 3 February 2010. The court found that the Tribunal was not obliged to invite the applicant to a further hearing on the basis of the error in the Tribunal's decision.

The application for review was dismissed. The applicant pay the costs of the Minister fixed in the sum of $4,900.

Orders