KAUR v Minister for Immigration - [2018] FCCA 3261

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3261

Catchwords:
MIGRATION – Administrative Appeals Tribunal – student (temporary)
(class TU) higher education sector (subclass 573) visa – application for extension of time – application filed 213 days out of time – extension of time application granted – application for judicial review dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth).

Cases cited:

Daniel v Minister for Immigration and Multicultural and Indigenous Affairs

(2004) 205 ALR 198

DAS v Minister for Immigration and Multicultural Affairs & Anor [2004] FCA

489

Hunter Valley Developments v Cohen [1984] FCA 176

M211/2003 v Refugee Review Tribunal [2004] FCAFC 293; (2004) 212 ALR

520

MAYLJ v Minister for Immigration and Citizenship [2012] FCA 335

Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

Plaintiff M90/2009 v Minister for Immigration and Citizenship & Anor [2009]

HCATrans 262

Shrestha v Minister for Immigration and Anor [2015] FFCA 2262

SZLIH v Minister for Immigration and Citizenship [2009] FCA 108

SZOCH v Minister for Immigration & Anor [2010] FMCA 300

SZUWX v Minister for Immigration [2015] FCA 1389

Vu v Minister for Immigration [2008] FCAFC 59

WZASC v Minister for Immigration & Anor [2013] FCCA 1452

WZAVL v Minister for Immigration and Border Protection & Anor [2016] FCA

334

First Applicant:

SHARANJEET KAUR

Second Applicant:

KIPPSY SINGH

Third Applicant:

GAVIN DHILLON

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 825 of 2016

Judgment of:

Judge Mercuri

Hearing date:

25 June 2018

Date of Last Submission:

25 June 2018

Delivered at:

Melbourne

Delivered on:

16 November 2018

REPRESENTATION

Counsel for the applicants:

In person

Solicitors for the applicants:

None

Advocate for the respondents:

Mr Cunynghame

Solicitors for the respondents:

Sparke Helmore

ORDERS

The applicants’ application for an extension of time filed on

22 April 2016 is granted.
The applicants’ application for judicial review filed 22 April 2016 is dismissed.
The applicants pay the first respondent’s costs of the proceeding in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 825 OF 2016

SHARANJEET KAUR

First Applicant

KIPPSY SINGH

Second Applicant

GAVIN DHILLON

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant filed an application on 22 April 2016 under the

Migration Act 1958
(Cth) (“the Act”) seeking:
a)an extension of time to apply for judicial review of the decision of the second respondent, made on 18 August 2015; and
b)
if an extension of time is granted, judicial review of the decision of the second respondent, made on 18 August 2015 by which the tribunal affirmed a decision of a delegate of the first respondent, made on 13 January 2015 cancelling the first named applicant’s student (temporary) (class TU) Higher Education Sector

(subclass 573) visa (“the…

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.

Keep reading for free

Create a free CaseChat account to read KAUR v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 3261
Decision Date: 16 November 2018

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (AAT) in *Kaur v Minister for Immigration*. The applicant, Ms Kaur, had sought an extension of time to lodge her application for a student (temporary) higher education sector (subclass 573) visa. Her application for an extension of time was filed 213 days after the prescribed deadline.

The primary legal issue before the court was whether the AAT had erred in law by granting Ms Kaur an extension of time to lodge her visa application. This required the court to consider the proper application of the relevant migration legislation and the principles governing the exercise of discretion by the AAT in granting extensions of time.

Judge Mercuri found that the AAT had not erred in law. The Tribunal had properly considered all relevant factors in exercising its discretion to grant the extension of time, including the reasons for the delay and the merits of the substantive application. The court affirmed that the AAT's role was to consider the application for an extension of time and the subsequent visa application, and that its decision to grant the extension was within its lawful powers.

The application for judicial review was dismissed.

Orders