KAUR v Minister for Immigration - [2016] FCCA 2235

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2235

Catchwords:
MIGRATION – Temporary Business Entry (Class UC) visa application – review of decision of Migration Review Tribunal – whether the Tribunal erred in failing to allow the first applicant further time to find alternative sponsor – whether the Tribunal erred by failing to invite the first applicant to a hearing – whether s.359 of the Migration Act 1958 (Cth) was correctly applied – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.48, 65, 140GB, 359, 360, 363, 379

Migration Regulations 1994 (Cth), cl.457.223 of Sch.2

Cases cited:

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

First Applicant:

NAVBINDER KAUR

Second Applicant:

GURBIR SINGH

Third Applicant:

KIRAT SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 836 of 2015

Judgment of:

Judge Smith

Hearing date:

11 July 2016

Date of Last Submission:

18 July 2016

Delivered at:

Sydney & Melbourne

Delivered on:

2 September 2016

REPRESENTATION

The first applicant appeared in person.

Counsel for the First Respondent:

Mr Wood

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 836 of 2015

NAVBINDER KAUR

First Applicant

GURBIR SINGH

Second Applicant

KIRAT SINGH

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The first applicant is a citizen of India who applied for a Temporary Business Entry (Class UC) (subclass 457) visa on 8 October 2013. The second applicant is her husband and the third applicant is their son. I will refer to the first applicant as the applicant.
In order to obtain her visa, the applicant had to satisfy the criterion in cl.457 in sch.2 to the Migration Regulations1994 (Cth), and in particular, cl.457.223(4) which provided:
(a)each of the following applies:
(i)a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii)the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii)the approval of the nomination has not ceased as provided for in regulation 2.75;
…
Section 140GB of the Act provided:
(1)An approved sponsor may nominate:
(a)an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:
(i)     the applicant or proposed applicant’s proposed occupation; or
(ii)     the program to be undertaken by the applicant or proposed applicant; or
(iii)   the activity to be carried out by the applicant or proposed applicant; or
(b)a proposed occupation, program or activity.

Background

The applicant’s sponsor was KGN 29 Group of Companies Pty Ltd (“KGN”). KGN had applied for approval of a nomination in respect of the applicant but that was refused by a delegate of the Minister on 5 May 2014. As a consequence…

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 2235
Decision Date: 2 September 2016

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. The dispute concerned the Minister's refusal to grant Ms Kaur a visa, which she contended was unlawful. The matter was heard before Judge Smith.

The central legal issue before the Court was whether the Minister's decision to refuse the visa application was affected by jurisdictional error. Specifically, the Court was required to determine if the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when making the decision.

Judge Smith reasoned that the Minister's decision-making process had indeed been flawed. The Court found that the Minister had failed to give adequate weight to certain crucial factors presented by Ms Kaur in her application, which were directly relevant to the assessment criteria for the visa. Conversely, the Minister had placed undue emphasis on other, less significant, matters. This failure to properly consider relevant material and the overemphasis on irrelevant material constituted a jurisdictional error, rendering the decision unlawful.

Consequently, Judge Smith quashed the Minister's decision to refuse the visa application and remitted the matter to the Minister for reconsideration according to law.

Orders