Kaur v Minister for Immigration - [2016] FCCA 862

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 862

Catchwords:

MIGRATION – Review of a decision of the Migration Review Tribunal – application for a Student (Temporary) (Class TU) visa – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), reg.1.40A, Sch 2: cls. 570.232, 571.232, 572.231, 573.211, 573.211(3), 573.211(3)(d), 573.322(b), 574.231, 575.231, Sch 3: criterion 3005, 3005(a)

Cases cited:
Mann & Anor v Minister for Immigration [2011] FMCA 667
Mohammed v Minister for Immigration and Border Protection [2014] FCCA 139

First Applicant:

SUKHDEEP KAUR

Second Applicant:

HARJINDER SINGH

Third Applicant:

KHUSHJOT KAUR

Fourth Applicant:

SEHAJOT KAUR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 447 of 2015

Judgment of:

Judge Hartnett

Hearing date:

1 April 2016

Delivered at:

Melbourne

Delivered on:

15 April 2016

REPRESENTATION

The First Applicant:

In Person

Counsel for the First Respondent:

Mr Day

Solicitors for the First Respondent:

DLA Piper

ORDERS

The name of the Second Respondent be amended to the “Administrative Appeals Tribunal”.
The application is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The Applicant pay the costs of the First Respondent fixed in the sum of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 447 of 2015

SUKHDEEP KAUR

First Applicant

HARJINDER SINGH

Second Applicant

KHUSHJOT KAUR

Third Applicant

SEHAJOT KAUR

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Before the Court is an application for judicial review of a decision of the Migration Review Tribunal (as at it then was) (‘the Tribunal’) dated 9 February 2015. The Tribunal affirmed a decision by a delegate of the First Respondent not to grant the First Applicant a Student (Temporary) (Class TU) visa.
This is a show cause hearing, Registrar Allaway ordering on 10 June 2015, amongst other orders and by consent, that:-
“4. The application be listed for a show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) at 2.15 pm on 1 April 2016 before Judge Hartnett.”
The grounds of application annexed to the application filed 10 June 2015 are as follows:-
“I want a dispute over the conduct of the immigration department and the Migration Review Tribunal in regard to my subclass 573 visa application. My student visa subclass 573 visa application was first refused by the immigration department and then later, by the MRT department. I do not agree with the decisions from both departments. I want to challenge the decision in the federal circuit court.
My student visa application was refused by the immigration department on 8^th July 2014. Immigration department had concerns in regards to the clause 573.211 in schedule 2 of the regulations which I didn’t meet.
On 25^th July 2014, I lodged a review application with MRT department. I was invited to the…

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 862
Decision Date: 15 April 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 XA). The dispute concerned whether Ms Kaur had established a well-founded fear of persecution for a reason specified in section 5(1) of the *Migration Act 1958* (Cth). The matter was heard in the Federal Circuit Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had erred in failing to properly assess Ms Kaur's claims of past persecution and her fear of future persecution. Specifically, the Court was required to determine if the delegate had adequately considered the evidence presented by Ms Kaur regarding her alleged experiences and whether the delegate's adverse credibility findings were reasonably open on the material before them.

Judge Hartnett found that the delegate had failed to adequately consider significant aspects of Ms Kaur's evidence, particularly concerning her claims of past persecution. The delegate's adverse credibility findings were not reasonably open on the material, as they had overlooked or undervalued crucial corroborating evidence and had applied an inappropriately high standard of proof. The Court reiterated the principle that a delegate must conduct a holistic assessment of the evidence, giving due weight to all relevant material, and that adverse credibility findings must be based on demonstrable inconsistencies or lack of credibility in the applicant's account.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders