Kaur v Minister for Immigration - [2020] FCCA 2606

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2606

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.359

Cases cited:

Htun v Minister for Immigration (2003) 233 FCR 136

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

NABE v Minister for Immigration(No 2) (2004) 144 FCR 1

First Applicant:

DALJIT KAUR

Second Applicant

RANVIR SINGH

Third Applicant

HARSIMRAT KAUR

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 514 of 2020

Judgment of:

Judge Driver

Hearing date:

16 September 2020

Delivered at:

Sydney

Delivered on:

16 September 2020

REPRESENTATION

The Applicant appeared in person:

Solicitors for the Respondents:

Ms D Stone of Sparke Helmore

ORDERS

Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The first and second applications are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 514 of 2020

DALJIT KAUR

First Applicant

RANVIR SINGH

Second Applicant

HARSIMRAT KAUR

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

The first applicant, Ms Kaur, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 7 February 2020.
The Tribunal affirmed decisions of a delegate of the Minister (delegate) not to grant the applicants temporary student visas. Before the Tribunal, the applicants comprised Ms Kaur, her husband and their child. Likewise, in the proceedings of this Court, there are two adult applicants and a child.
Background facts relating to this matter are otherwise conveniently set out in the Minister’s outline of submissions filed on 2 September 2020, which I adopt.
Ms Kaur, a citizen of India, arrived in Australia on 18 April 2009 as the holder of a Vocational Education and Training Sector (subclass 572) visa.[1] Since her arrival, over ten years ago, she has either held a student visa, 457 visa or associated bridging visas. On 22 December 2017, she was refused her application for a permanent Regional Sponsored Migration Scheme (Subclass 187) visa.[2]
[1] Court Book (CB) 51-52
[2] CB 52
On 31 January 2018, four days before Ms Kaur’s 457 visa was due to cease, she applied for the further student visa to undertake an Advanced Diploma in Leadership and Management, due to be completed in May 2021.[3] The second and third applicants were included in the application as members of her family unit.[4]
[3] CB 1-22
[4] CB 4-5
On 22 March 2018, the delegate…

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: [2020] FCCA 2606
Decision Date: 16 September 2020

CaseChat Overview and Summary

In *Kaur v Minister for Immigration*, the applicant sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which had refused her application for a student visa. The Minister for Immigration was the respondent. The applicant had also made an interlocutory application to dismiss a show cause notice issued by the Minister, which was also before the court.

The primary legal issue before the court was whether the AAT's decision involved jurisdictional error. Relatedly, the court had to determine if the applicant had an arguable case of jurisdictional error, which would be necessary for her interlocutory application to dismiss the show cause notice to succeed.

Judge Driver found that the applicant had not demonstrated any arguable case of jurisdictional error on the part of the AAT. The court reasoned that the AAT's decision was within its jurisdiction and that the applicant's submissions did not disclose any error that would vitiate the Tribunal's findings or its process. Consequently, the interlocutory application to dismiss the show cause notice was dismissed.

Orders