Kaur v Minister for Immigration - [2018] FCCA 3295

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3295

Catchwords:
MIGRATION – Student (temporary) (class TU) (subclass 573) visa – condition 8516 – primary applicant not enrolled in a principal course of study of a type specified by the minister – primary applicant’s complaints of a denial of natural justice and breach of procedural fairness not made out – application dismissed.

Legislation:

Migration Act 1958, ss.116(1)(b), 140, 384

Migration Regulations 1994, reg.1.40A, sch 2, cls 573.611, 573.616, 573.223, 573.231, condition 8516

Cases cited:
Rani & Ors v Minister for Immigration & Multicultural Affairs (1997) 80 FCR 379
Tien & Ors v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80

First Applicant:

DALJEET KAUR

Second Applicant:

ARMINDER SINGH DHALLA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 974 of 2016

Judgment of:

His Honour Judge Wilson

Hearing date:

12 November 2018

Date of Last Submission:

12 November 2018

Delivered at:

Melbourne

Delivered on:

14 November 2018

REPRESENTATION

First Applicant:

In person

Solicitors for the First Applicant:

None

Second Applicant:

In person

Solicitors for the Second Applicant:

None

Solicitors for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Australian Government Solicitor

ORDERS

The application filed on 11 May 2016 is 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 974 of 2016

DALJEET KAUR

First Applicant

ARMINDER SINGH DHALLA

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed in this court on 11 May 2016, the applicants sought judicial review of a decision of the Administrative Appeals Tribunal made on 20 April 2016 pursuant to which the tribunal affirmed the decision of the minister’s delegate to cancel the first applicant’s higher education sector (subclass 573) visa. The tribunal found additionally that it had no jurisdiction with respect to the second named applicant.
The applicants relied on eight grounds of review. In the passages below I have addressed each of those grounds of review.
The applicants appeared before me with the assistance of an interpreter but otherwise not with legal representation. In essence, the first applicant told me that, in answer to my question what the tribunal did wrong, the relevant tribunal member did not listen to her and instead made a decision without taking into account her version of events.

Synopsis

For the reasons that follow, in my judgment the tribunal made no error in respect of the decision relating to the first applicant. It followed that after it affirmed the delegate’s decision it had no jurisdiction with respect to the second applicant. In those circumstances, I dismiss this application for judicial review and order the applicants to pay the minister’s costs.

Short factual narration

The primary applicant is a 27-year-old…

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: [2018] FCCA 3295
Decision Date: 14 November 2018

CaseChat Overview and Summary

The applicant, Ms Kaur, sought judicial review of a decision by the Minister for Immigration to refuse her Student (temporary) (class TU) (subclass 573) visa. The refusal was based on the applicant's failure to satisfy visa condition 8516, which requires a primary applicant to be enrolled in a principal course of study of a type specified by the Minister. The application was heard in the Federal Circuit Court of Australia.

The central legal issues before the Court were whether the applicant had met the requirements of condition 8516, and whether she had been denied natural justice or procedural fairness in the decision-making process.

His Honour Judge Wilson found that the applicant had not provided sufficient evidence to demonstrate that she was enrolled in a principal course of study of a type specified by the Minister. The Court also considered the applicant's claims of a denial of natural justice and procedural fairness, but concluded that these complaints were not made out on the facts before the Court.

Consequently, the application for judicial review was dismissed.

Orders