Kaur v Minister for Immigration - [2019] FCCA 168

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 168

Catchwords:
MIGRATION – Application for judicial review – allegations of fraud – work visa – fraud in the relevant sense not established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 140(1).

Cases cited:

Noeung v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1304; (2002) 125 FCR 503

Patel v Minister for Immigration and Border Protection [2015] FCCA 2893
Farah v Minister for Immigration and Citizenship [2011] FCA 185

Applicant:

KULDEEP KAUR

Second Applicant:

BACHITTER SINGH

Third Applicant:

AVROOP KAUR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 299 of 2017

Judgment of:

Judge Riethmuller

Hearing date:

30 July 2018 and 21 September 2018

Date of Last Submission:

5 October 2018

Delivered at:

Melbourne

Delivered on:

31 January 2019

REPRESENTATION

The Applicant appeared In Person

Counsel for the Respondents:

Mr Petrie

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 299 of 2017

KULDEEP KAUR

Applicant

BACHITTER SINGH

Applicant

AVROOP KAUR

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 20 January 2017. That decision affirmed the decision of a delegate to the Minister not to grant the first named applicant (thereafter the applicant) a Subclass 457 (Temporary Work (Skilled)) visa. Whilst a visa was initially granted, a delegate cancelled the applicant’s visa pursuant to s.116(b) of the Migration Act 1958 on the basis that the applicant had not complied with the conditions of her visa.
The second and third named applicants’ applications are based upon being the spouse and child of the applicant and as such their visas were automatically cancelled under s.140(1) of the Act.
The applicant is a citizen of India. The applicant was previously the holder of a student visa in Australia from 2008 to 2012, but after unsuccessfully applying for a subclass 485 temporary skilled work visa in 2012 she returned to India.
The applicant was granted a 457 visa offshore on 22 April 2015, and arrived in Australia on 21 May 2015. The applicant’s 457 visa was granted for her to work as a Café or Restaurant Manager, sponsored by Wenham Properties Pty Ltd, t/as Hinchinbrook Resort. Condition 8107 of the visa required the applicant to commence work within 90 days of arriving in Australia.
On 4 September 2015, the Department received an email, apparently from the applicant, stating ‘I do not have the position and I advised the lawyers in advance and I guess the visa still got granted’.
It appears that it was not until ten months later that, on 6 July 2016, the Department sent the applicant a Notice of Intention to Consider Cancellation (‘NOICC’) on the basis that the applicant had failed to commence…

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 168
Decision Date: 31 January 2019

CaseChat Overview and Summary

In *Kaur v Minister for Immigration*, the applicant sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the applicant's application for a work visa, which was refused by the Minister. The applicant alleged that the Minister's decision was unlawful.

The primary legal issue before the Court was whether the applicant had established fraud in the relevant sense that would vitiate the Minister's decision. This required the Court to consider the nature of the alleged fraudulent conduct and its impact on the visa application process.

Judge Riethmuller found that the applicant had not established fraud in the relevant sense. The Court's reasoning focused on the specific allegations made by the applicant and the evidence presented. The Court concluded that the conduct, while potentially misleading, did not meet the legal threshold for fraud that would warrant setting aside the Minister's decision. Consequently, the application for judicial review was dismissed.

Orders