Kaur v Minister for Immigration - [2019] FCCA 2585

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2585

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Student (Class TU) (Subclass 573) visa – whether the Tribunal failed to take into account a relevant consideration – whether the Tribunal made irrelevant or inappropriate enquiries of the First Applicant – application for judicial review – application dismissed with costs.

Legislation:

Migration Act 1958, ss.116(1), 140(1), 353, 499

Migration Regulations 1994, reg.1.40A, Cl. 573.111, 573.231, 573.223, 573.223(1A) of Schedule 2
Migration (IMMI 14/015: Specification of Types of Courses for Student Visas) Instrument 2015

Cases cited:

Collector of Customs v Pozzolanic (1993) 43 FCR 280
Iftikhar v Minister for Immigration [2018] FCCA 2924
Maan v Minister for Immigration and Border Protection (2017) 253 FCR 564
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Shrestha v Minister for Immigration [2017] FCCA 1875
Singh v Minister for Immigration and Border Protection (2016) 240 FCR 1

First Applicant:

RAVNEET KAUR KAUR

Second Applicant

NAVJOT SINGH GREWAL

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

File number

MLG 559 of 2016

Judgment of:

Judge Blake

Hearing date:

5 September 2019

Date of Last Submission:

5 September 2019

Delivered at:

Melbourne

Delivered on:

13 September 2019

REPRESENTATION

Counsel for the Applicant:

Mr Oldham

Solicitors for the Applicant:

Carina Ford Immigration Lawyers

Counsel for the Respondents:

Mr Roe

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Application filed on 21 March 2016 and amended on 19 August 2019 be dismissed.
The Applicants pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 559 of 2016

RAVNEET KAUR KAUR

First Applicant

NAVJOT SINGH GREWAL

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by the Applicants for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 3 March 2016. In that decision, the Tribunal affirmed a decision of a delegate of the Minister to cancel the First Applicant’s Student (Class TU) (Subclass 573) visa (‘Visa’).
The First Applicant, Ms Kaur is the primary applicant and holder of the Visa. The Second Applicant, Mr Grewal, is her husband.
The application for review in this Court has been filed by both Applicants. The Tribunal considered that it did not have jurisdiction to review the cancellation of the Second Applicant’s visa because that cancellation had been affected by operation of section 140(1) of the Migration Act 1958 (‘Act’) and was not a decision. It was agreed by the parties that this finding was not an issue in the present application.
For the reasons that follow, I have decided to dismiss the application for review filed in this Court.

Background

The Applicants are Indian nationals.
The First Applicant arrived in Australia in July 2012 and was…

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: [2019] FCCA 2585
Decision Date: 13 September 2019

CaseChat Overview and Summary

In *Kaur v Minister for Immigration*, the applicant, Ms Kaur, sought judicial review of a decision by the Minister for Immigration to refuse her visa application. The dispute concerned the lawfulness of the Minister's decision, which Ms Kaur alleged was affected by jurisdictional error. The matter came before Judge Blake of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had failed to consider relevant considerations and had taken into account irrelevant considerations when assessing Ms Kaur's visa application. Specifically, the Court was required to determine if the delegate's assessment of the applicant's claims for protection had been vitiated by a failure to properly engage with the evidence presented and the relevant criteria under the *Migration Act 1958* (Cth) and associated regulations.

Judge Blake reasoned that the delegate's decision-making process contained a jurisdictional error. The delegate had failed to adequately consider crucial aspects of Ms Kaur's evidence regarding her fear of persecution, instead focusing on a narrow interpretation of certain aspects of her claims. The Court applied the principles established in administrative law concerning the duty to consider all relevant material and to avoid irrelevant considerations, finding that the delegate's approach fell short of the required standard.

Consequently, Judge Blake set aside the Minister's decision and remitted the matter to the Minister for redetermination according to law.

Orders