Kaur v Minister for Immigration - [2017] FCCA 964

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 964

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal – whether the Tribunal erred in its consideration of compelling reasons for waiving criteria in Schedule 3 to the Migration Regulations – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 359A
Migration Regulations 1994 (Cth), cl.820.21

Cases cited:

Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 116 FCR 557; [2002] FCA 438
Gill v Minister for Immigration and Border Protection [2017] FCAFC 51
Kaur v Minister for Immigration and Border Protection [2014] FCA 281
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; [2009] HCA 37

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205

CLR 507; [2001] HCA 17

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28

Singh v Minister for Immigration and Border Protection [2013] FCA 1324
SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1; [2012] FCAFC 58
SZOVB v Minister for Immigration and Citizenship (2011) 125 ALD 38; [2011] FCA 1462
VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1

Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121; [2016] FCAFC 32

Applicant:

PARAMJEET KAUR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3146 of 2015

Judgment of:

Judge Barnes

Hearing date:

27 April 2017

Delivered at:

Sydney

Delivered on:

27 April 2017

REPRESENTATION

Applicant:

In Person (by telephone)

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3146 of 2015

PARAMJEET KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 23 October 2015. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Partner (Temporary) (Class UK) visa.
On 1 May 2014, the Applicant, a citizen of India, applied for a partner visa. The application was refused and the Applicant sought review by the Tribunal.
In response to an invitation of 10 March 2015 the Applicant attended a Tribunal hearing on 28 April 2015.
On 21 July 2015, the Tribunal sent two letters to the Applicant. First it wrote to her under s.359A of the Migration Act 1958 (Cth) (the Act) putting to her the information that prior to the hearing on 28 April 2015 she had submitted a report from Psychology Pathways dated 10 April 2015 in support of her…

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: [2017] FCCA 964
Decision Date: 27 April 2017

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 application for a Protection Visa (PV). The dispute centred on whether the Minister had adequately considered the applicant's claims of persecution in her country of origin. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had failed to take into account relevant considerations and taken into account irrelevant considerations when assessing Ms Kaur's claims for protection. Specifically, the Court was asked to determine if the delegate had properly considered the evidence presented by Ms Kaur regarding the risk of harm she faced upon return to her country of origin, and whether the delegate's assessment of this risk was reasonable and supported by the evidence.

Judge Barnes found that the delegate had failed to adequately consider crucial aspects of Ms Kaur's evidence, particularly concerning the specific nature of the threats she faced and the potential for her to be targeted upon return. The Court reasoned that a failure to give proper weight to such evidence amounted to a failure to take into account relevant considerations, thereby vitiating the decision-making process. The legal principle applied was that administrative decisions must be based on a proper consideration of all relevant evidence and that a failure to do so renders the decision legally flawed.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders