Kaur v Minister for Immigration - [2020] FCCA 2678

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2678

Catchwords:
MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether Tribunal failed to consider a relevant consideration – whether the Tribunal acted illogically – whether the Tribunal overlooked evidence – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), cl.500.212 of sch.2

Cases cited:

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184

Bala v Minister for Immigration & Border Protection [2019] FCA 600

First Applicant:

NATH MANDEEP KAUR

Second Applicant:

SUKHRAJ BIR SINGH

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 504 of 2019

Judgment of:

Judge Kendall

Hearing date:

23 September 2020

Date of Last Submission:

23 September 2020

Delivered at:

Perth

Delivered on:

25 September 2020

REPRESENTATION

Applicant:

The first applicant appeared in person and on behalf of the second applicant

Counsel for the First Respondent:

Ms E Tattersall

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The first respondent have leave to rely on the affidavit of Cody Nathalie Allen affirmed 27 August 2020.
The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 504 of 2019

NATH MANDEEP KAUR

First Applicant

SUKHRAJ BIR SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicants are citizens of India. The first applicant and the second applicant are wife and husband respectively. They arrived in Australia on a Subclass 573 Student visa on 7 February 2014 (Court Book (“CB”) 67).
On 16 September 2016, the first applicant applied for a Student (Temporary) (class TU) Student (subclass 500) visa (the “visa”). The first applicant indicated that she was enrolled in a Bachelor of Business. The second applicant was included in the application as a member of the first applicant’s family unit (CB 1-45).
On 4 November 2016, the then Department of Immigration and Border Protection requested that the first applicant provide, among other things, a Genuine Temporary Entrant statement (CB 47-50). The applicant…

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: [2020] FCCA 2678
Decision Date: 25 September 2020

CaseChat Overview and Summary

Kaur (the applicant) sought judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal) concerning her student visa application. The Minister for Immigration (the first respondent) was the opposing party. The application was heard by Judge Kendall in the Federal Circuit Court of Australia.

The central legal issues before the Court were whether the Tribunal had failed to consider a relevant consideration, acted illogically, or overlooked evidence in its determination of the applicant's student visa application. These questions related to whether the Tribunal had committed a jurisdictional error in its decision-making process.

Judge Kendall found that the Tribunal had not committed a jurisdictional error. The Court reasoned that the Tribunal had adequately considered the relevant evidence and submissions before it, and that its decision was not illogical. The Court granted the first respondent leave to rely on an affidavit affirmed on 27 August 2020.

Ultimately, the application for judicial review was dismissed.

Orders

Orders of the court

ORDERS

1. The first respondent have leave to rely on the affidavit of Cody Nathalie Allen affirmed 27 August 2020.

2. The application be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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