Kaur v Minister for Immigration - [2016] FCCA 2275

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2275

Catchwords:
MIGRATION – Skilled visa – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error because the exercise of the Tribunal’s discretion to proceed to a decision miscarried and because the Tribunal and the Review Medical Officer of the Commonwealth relied on an incorrect version of cl.4005 of sch.4 to the Migration Regulations 1994.

Legislation:

Migration Act 1958, ss.351, 474, 476

Migration Regulations 1994, reg.2.25A, cl.886.227 of sch.2, cl.4005 of sch.4
Migration Amendment Regulation 2012 (No.2), items 26, 29 of sch.2

Migration Amendment Regulations 2011 (No.6), reg.5, item 1 of sch.3

Migration Legislation Amendment Regulations 2011 (No.1), items 2, 3, 4, 5 and 6 of sch.4

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Robinson v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 148 FCR 182
Ramlu v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 195 FLR 203
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

First Applicant:

SATVEER KAUR

Second Applicant:

GURJEET SINGH DHALIWAL

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1269 of 2014

Judgment of:

Judge Cameron

Hearing date:

18 August 2016

Date of Last Submission:

18 August 2016

Delivered at:

Sydney

Delivered on:

2 September 2016

REPRESENTATION

Solicitors for the Applicants:

Mr D. Harvey of David Harvey Law

Counsel for the First Respondent:

Mr T. Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1269 of 2014

SATVEER KAUR

First Applicant

GURJEET SINGH DHALIWAL

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicants, who are citizens of India, applied for Skilled (Residence) (Class VB) subclass 886 visas on 29 December 2009. The first applicant, Ms Kaur, was the primary visa applicant on the application whilst her husband and the second applicant, Mr Dhaliwal, was included in the application as a member of Ms Kaur’s family unit. On 8 March 2013 a delegate of the first respondent (“Minister”) refused the applicants’ application on the basis that Mr Dhaliwal did not meet Public Interest Criterion (“PIC”) 4005 because he had a medical condition which would be likely to result in significant costs to the Australian community. The applicants then applied to the second respondent (“Tribunal”) for a review of the delegate’s decision. They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicants’ applications for visas. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR…

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 2275
Decision Date: 2 September 2016

CaseChat Overview and Summary

Kaur (the applicant) sought judicial review of a decision made by the Migration Review Tribunal (the Tribunal) concerning her application for a skilled visa. The Minister for Immigration (the respondent) was the opposing party. The applicant alleged that the Tribunal's decision was affected by jurisdictional error.

The central legal issues before the court were whether the Tribunal's exercise of its discretion to proceed to a decision constituted a miscarriage, and whether the Tribunal and the Review Medical Officer of the Commonwealth had relied on an incorrect version of clause 4005 of Schedule 4 to the *Migration Regulations 1994* (Cth).

Judge Cameron found that the Tribunal had indeed relied on an incorrect version of clause 4005. The court reasoned that this reliance constituted a jurisdictional error because it meant the Tribunal failed to consider the correct legal requirements applicable to the applicant's case. Consequently, the Tribunal's decision was vitiated by this error.

The court ordered that the decision of the Migration Review Tribunal be set aside.

Orders