KAUR v Minister for Immigration - [2015] FCCA 3533

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3533

Catchwords:
MIGRATION –Migration Review Tribunal – Skilled (Provisional) (Class VC) – public interest criterion 4020 – requirement that there be no evidence that the applicant has provided a bogus document to the Minister – apparently bogus IELTS test result provided – application for merits review – no jurisdictional error discernible.

Legislation:
Migration Act 1958 ss.5, 359, 359A
Migration Regulations 1994 schedule 2 cl.485.224, reg.1.03, public interest criterion 4020

Cases cited:
Singh v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1435

First Applicant:

RAJWINDER KAUR

Second Applicant:

JAGROOP SINGH

Third Applicant:

CHARANJOT SINGH CHANAL

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 1548 of 2014

Judgment of:

Judge Riley

Hearing date:

9 December 2015

Date of last submission:

9 December 2015

Delivered at:

Melbourne

Delivered on:

9 December 2015

REPRESENTATION

Counsel for the first applicant:

The first applicant appeared in person

Solicitors for the first applicant:

The first applicant was not represented

Counsel for the second applicant:

No appearance

Solicitors for the second applicant:

The second applicant was not represented

Counsel for the third applicant:

The third applicant appeared through his litigation guardian

Solicitors for the third applicant:

The third applicant was not represented

Solicitor Advocate for the first respondent:

Marcus Priest

Solicitors for the first respondent:

Sparke Helmore

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

Sparke Helmore

ORDERS

The application filed on 31 July 2014 be dismissed.
The applicants pay the first respondent’s costs of the proceeding fixed in the sum of $5,800.
The title of the proceeding be amended so that the name of the second respondent is the Administrative Appeals Tribunal.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1548 of 2014

RAJWINDER KAUR

First Applicant

JAGROOP SINGH

Second Applicant

CHARANJOT SINGH CHANAL

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

MIGRATION REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

This is an application for review of a decision of the Migration Review Tribunal (“the tribunal”). The applicants applied for Skilled (Provisional) (Class VC) visas on 27 July 2011. The first applicant was the primary applicant, the second applicant was her husband and the third applicant was their child. The delegate refused those visas because he or she was not satisfied that the applicants met public interest criterion 4020 (“PIC 4020”).
That criterion required that there be no evidence that the applicant had provided false or misleading information, or a bogus document to the Minister. “Bogus document” is defined in s.5 of the Migration Act 1958 (“the Act”) to mean:
… a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because…

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: [2015] FCCA 3533
Decision Date: 9 December 2015

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, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant Ms Kaur a Partner (Temporary) (Class UK) visa.

The primary 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 consider whether the delegate of the Minister had failed to take into account relevant considerations or had taken into account irrelevant considerations when assessing Ms Kaur's eligibility for the visa.

Judge Riley found that the delegate had failed to properly consider the evidence provided by Ms Kaur regarding her relationship with her partner, which was a crucial factor in the assessment of a Partner visa. The delegate's decision was based on an erroneous understanding of the evidence, leading to a failure to engage with the substance of Ms Kaur's claim. This failure constituted a jurisdictional error, as the delegate did not exercise their power according to law.

Consequently, the court quashed the Minister's decision and remitted the application for reconsideration according to law.

Orders