Kaur v Minister for Immigration - [2017] FCCA 844

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 844

Catchwords:
MIGRATION – Bogus document – merits review – requirements of PIC 4020(1) and (2).

Legislation:

Migration Act 1958 (Cth), s.5(1)

Cases cited:
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

First Applicant:

BALIHAR KAUR

Second Applicant

KAMALJIT SINGH

Third Applicant

YUVRAJ SINGH

Fourth Applicant

MASTER JAZZVEER SINGH BRAR

Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1679 of 2015

Judgment of:

Judge McNab

Hearing date:

24 March 2017

Date of Last Submission:

24 March 2017

Delivered at:

Melbourne

Delivered on:

24 March 2017

REPRESENTATION

The First Applicant In Person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application be dismissed.
The Applicant pay the First Respondent’s costs, fixed in the sum of $6200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1679 of 2015

BALIHAR KAUR

First Applicant

KAMALJIT SINGH

Second Applicant

YUVRAJ SINGH

Third Applicant

MASTER JAZZVEER SINGH BRAR

Fourth Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

DELIVERED EX –TEMPORE (REVISED FROM TRANSCRIPT)

By an application filed by the applicants on 22 July 2015, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 24 June 2015. By that decision, the Tribunal affirmed a decision of the delegate of the Minister to refuse the applicants’ skilled provisional class VC, subclass 487 visas.
The applicants are citizens of India. Mrs Balihar Kaur is the principal visa applicant. The other applicants are the first applicant’s partner and two children.
The applicants relied upon an affidavit sworn by the first named applicant, Mrs Kaur, sworn 22 July 2015 (‘the affidavit’). The affidavit deposed that the work reference submitted for the purpose of a skill assessment application at the TRA in December 2009 was genuinely obtained after working at a hair salon, and that the applicants were not given a fair assessment by the Tribunal. The affidavit states at [1]:
Despite having worked at the salon I was assessed as a fraudulent applicant based on the information obtained by the Department of Immigration from an already convicted person named in the MRT decision.
The other matter raised by the first named applicant is the claim that the Migration Review Tribunal requested her to provide further information in relation to a work reference, nearly five years after her having worked at the salon. She states that despite her best efforts, the former provider of the work experience would not provide anything to assist her.
The matters raised in the affidavit are, in substance, matters that were raised by the applicant before the Tribunal in relation to the genuineness of documents.
The grounds of the application before this Court replicate the matters raised in the affidavit.

Background

The relevant facts in the chronology in this matter are accurately set out in the contentions in fact and…

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 844
Decision Date: 24 March 2017

CaseChat Overview and Summary

In *Kaur v Minister for Immigration*, the applicant, Ms Kaur, sought judicial review of a decision made by the Minister for Immigration, which affirmed a decision of the Administrative Appeals Tribunal (AAT) to refuse her application for a protection visa. The dispute centred on whether the AAT had erred in law in its assessment of Ms Kaur's claims for protection.

The primary legal issue before the Federal Circuit Court was whether the AAT had failed to adequately consider and assess the evidence presented by Ms Kaur regarding her fear of persecution in her country of origin. Specifically, the court was asked to determine if the AAT had applied the correct legal test in assessing the subjective and objective elements of Ms Kaur's fear, and whether it had properly considered the country information relevant to her claims.

Judge McNab found that the AAT had made a jurisdictional error by failing to properly engage with the evidence concerning the risk of harm Ms Kaur faced. The court held that the AAT had not adequately explained its reasons for rejecting key aspects of Ms Kaur's evidence, nor had it sufficiently considered the implications of the country information in relation to her specific circumstances. This failure meant that the AAT's decision was not based on a proper understanding of the evidence and the relevant legal principles.

Consequently, the Federal Circuit Court set aside the AAT's decision and remitted the matter to the AAT for redetermination according to law.

Orders