KAUR v Minister for Immigration - [2016] FCCA 3161

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3161

Catchwords:
MIGRATION – Judicial review – show cause hearing.

Legislation:

Migration Act 1958 (Cth), ss.116(1)(fa), 359AA

Federal Circuit Court Rules 2001 (Cth), r.44.12

First Applicant:

GURMEET KAUR

Second Applicant:

KULWANT SINGH SANGHA

Third Applicant:

SAHIBNOOR SINGH SANGHA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 220 of 2016

Judgment of:

Judge Harland

Hearing date:

7 November 2016

Date of Last Submission:

7 November 2016

Delivered at:

Melbourne

Delivered on:

7 November 2016

REPRESENTATION

The Applicant:

In person

Counsel for the Respondents:

DLA Piper Australia

Solicitors for the Respondents:

Ms Koya

ORDERS

The application filed 8 February 2016 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $3,066.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 220 of 2016

GURMEET KAUR

First Applicant

KULWANT SINGH SANGHA

Second Applicant

SAHIBNOOR SINGH SANGHA

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This matter was listed for a show cause hearing this morning pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth). It is necessary for me to determine whether or not the applicant has disclosed an arguable case for relief. If she has, then I can set the matter down for a final hearing. If she has not, then the appropriate course is to dismiss the application. The applicant sets out several paragraphs in her application for judicial review. Those complaints really seek a merits review, apart from a possible complaint about bias, which I will come to later.
Some of that application also provides some background. The Registrar of the Federal Circuit Court made directions for the filing of any amended material and submissions on 6 July 2016. The applicant has not filed anything since filing her application and affidavit of support on 8 February 2016. The applicant and her family attends today without the assistance of legal representation. I explained the process of hearing and the nature of jurisdictional error.
The applicant said in her submissions today that she feels that the Tribunal ignored her medical material and referred to her living in Shepparton and studying in Melbourne. She said that many students do that kind of travel. She felt that that was an error on the Tribunal’s part.
The first respondent has prepared written submissions, which the applicant has read, and went through those submissions in detail this morning.
The applicant was granted a 572 visa to study a diploma and advanced diploma at Imperial College. The Court Book at pages 5 and 7 show two warning letters sent by the college to the applicant’s address. I note that…

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: [2016] FCCA 3161
Decision Date: 7 November 2016

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 (Class 866). The dispute centred on whether the Minister's delegate had properly considered the applicant's claims for protection under the *Migration Act 1958* (Cth).

The primary legal issue before the Federal Court was whether the delegate's decision was affected by jurisdictional error. Specifically, the court was required to determine if the delegate had failed to consider relevant considerations or had taken irrelevant considerations into account when assessing Ms Kaur's claims for protection, thereby vitiating the decision-making process.

Judge Harland found that the delegate had failed to adequately consider crucial aspects of Ms Kaur's evidence regarding her fear of persecution. The delegate's assessment had overlooked significant details that were central to establishing a well-founded fear of persecution, leading to a conclusion that the delegate had not undertaken the comprehensive assessment required by the legislation. This failure to properly engage with the applicant's evidence constituted a jurisdictional error. The Court therefore quashed the delegate's decision and remitted the matter to the Minister for redetermination according to law.

Orders