Kaur v Minister for Immigration - [2016] FCCA 778

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 778

Catchwords:
MIGRATION – Review of a decision by the Migration Review Tribunal – Skilled (Graduate) (Temporary) (Class VC), subclass 485 visa – false and misleading information of a TRA assessment – no waiver under PIC 4020(4) –application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.98, 359(2), 359A, 359C, 360(3),363A

Migration Regulations 1994 (Cth), Sch. 2: cls.485.221, 485.224, Sch. 4: 4020, 4020(1), 4020(2), 4020(4)

Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40

Sran v Minister for Immigration & Anor [2014] FCCA 37
Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42; 220 FCR 169
Vyas v Minister for Immigration and Citizenship[2012] FMCA 92

First Applicant:

MANPREET KAUR

Second Applicant:

SURINDER SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 43 of 2015

Judgment of:

Judge Hartnett

Hearing date:

16 March 2016

Delivered at:

Melbourne

Delivered on:

16 March 2016

REPRESENTATION

Counsel for the Applicants:

Mr Gordon

Solicitors for the Applicants:

Ronald Gordon

Counsel for the First Respondent:

Mr Smyth

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS MADE ON 16 MARCH 2016

The name of the Second Respondent be changed to the Administrative Appeals Tribunal
The application is dismissed.
The applicants pay the costs of the First Respondent fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 43 of 2015

MANPREET KAUR

First Applicant

SURINDER SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

Before the Court is an application for judicial review dated 12 January 2015. The grounds of the original application were as follows:-
“1. I need to be given a chance to prove my circumstances.
2. I have genuine skills and education gained as a result of my hard work and I can positively contribute towards the Australian community.”
The application was amended by amended application filed on the hearing of this matter, namely 16 March 2016. The amended application does not proceed with the initial grounds of the application, which were formulated when the Applicants were litigants in person. On the hearing the Applicants were represented by a Solicitor, who sought leave to file the Amended Application. Such leave was granted. There was also filed and relied upon an Applicants’ outline of written submissions and an affidavit affirmed by the First Respondent on 12 January 2015.
Registrar Burns ordered on 29 April 2015 that the Applicants file and serve by 3 February 2016 an amended application and written submissions. The Applicants have now attended to those matters at the final hearing. The amended grounds of application are as follows:-
“1. The Applicants application lodged on 6 January 2011 was an invalid application by reason of fraud committed by the Applicants then migration agent;
2. There was evidence before the then Migration Review Tribunal that the Applicants…

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 778
Decision Date: 16 March 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. The dispute concerned whether the Minister had adequately considered the applicant's claims of persecution in her country of origin. The matter came before Hartnett J of the Federal Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had failed to consider relevant considerations or taken into account irrelevant considerations when assessing Ms Kaur's claims for protection. Specifically, the Court was asked to determine if the delegate had properly assessed the risk of harm Ms Kaur would face upon return to her country of origin, particularly in light of her specific circumstances and the evidence she had provided.

Hartnett J found that the delegate had failed to adequately consider crucial aspects of Ms Kaur's evidence regarding the specific nature of the threats she faced and the reasons for her fear of persecution. The Court applied the principles of administrative law, emphasizing the obligation of a decision-maker to undertake a comprehensive and fair assessment of all relevant evidence. The delegate's decision was found to be vitiated by a failure to engage with the substance of Ms Kaur's claims, leading to an unreasonable conclusion.

Consequently, Hartnett J set aside the decision of the Minister and remitted the application for a Protection visa to the Minister for redetermination according to law.

Orders