FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship, and Multicultural Affairs [2023] FedCFamC2G 601
File number(s): BRG 500 of 2021 Judgment of: JUDGE EGAN Date of judgment: 10 July 2023 Catchwords: MIGRATION LAW – Whether Tribunal conducted a proper review – whether Tribunal was illogical or irrational in the way in which it arrived at its decision – no jurisdictional error established – application dismissed. Legislation: Migration Regulations1994 (Cth) cl. 500.212 of Sch. 2 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCA FC 73
MZZUG v Minister for Immigration [2015] FCA 1151
NAQR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1033
Division: Division 2 General Federal Law Number of paragraphs: 26 Date of last submission/s: 4 July 2023 Date of hearing: 4 July 2023 Place: Brisbane Counsel for the Applicants: Mr M Steele KC Counsel for the First Respondent: Mr J Byrnes Solicitor for the Applicants: Denes Lawyers Solicitor for the First Respondent: Minter Ellison Second Respondent: Submitting appearance save as to costs ORDERS
BRG 500 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMANDEEP KAUR
First Applicant
MANPREET SINGH
Second Applicant
GURSHAAN SINGH
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
10 July 2023
THE COURT ORDERS THAT:
1.The Amended Application for Review filed on 23 March 2023 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
The primary applicant (‘the applicant’) was a female citizen of the Republic of India. The secondary applicants were respectively the primary applicant’s husband and male child. The success of the visa applications made on behalf of the secondary applicants was dependent upon the success of the primary applicant’s application because they were her family member dependents.
The applicants arrived in Australia on visitor visas that were valid from May 2019 until May 2020. The applicant applied for a student visa on 29 October 2019 on the basis that…
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- Kaur v Minister for Immigration, Citizenship, and Multicultural Affairs [2023] FedCFamC2G 601
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- [2023] FedCFamC2G 601
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CaseChat Overview and Summary
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Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
Relevant findings made by the Tribunal were at [25], [26], [31], [38] and [43] of its reasons and were as follows: 25. Based on all this evidence the Tribunal finds that the applicant’s family ties to India do not of themselves constitute a strong incentive for the applicant to return to India. In making this finding the Tribunal has placed significant weight on the fact that the applicant has been in Australia for over two years and has not returned and has managed to keep in touch with her family in India via electronic means during this time.26.Similarly, based on all of this evidence the Tribunal finds that the applicant’s family ties to Australia do constitute a strong incentive for the applicant to remain in Australia, and in making this finding the Tribunal has placed significant weight on the fact that the applicant is living in Australia with her husband and child.… 31. Based on all of this evidence the Tribunal is concerned that the applicant may be attempting to use the student visa system to stay in Australia for longer. In making this finding the Tribunal has placed significant weight on the fact that the applicant has swapped the focus of her studies significantly since arriving in Australia. She arrived in Australia on a visitor visa and then completely changed her plans to study in Australia. She is completing lower level courses to the Bachelor’s courses she’s completed in India, and she has now been in Australia for over two years. 38. Based on all of this evidence the Tribunal finds the applicant has provided only vague details about her future plans and has failed to explain in any meaningful detail why she requires her current course in order to complete her future plans. In making this finding the Tribunal has placed significant weight on the fact that the applicant does not have a written business plan for her future business, and she already has a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management, and the Advanced Diploma of Hospitality Management is an extra course over and above the courses the applicant was planning to complete when she first applied for the student visa. 43. On this basis, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl. 500.212(a). Consideration of Grounds of Review Ground 2 of the Amended Application for Review was a claim that the findings of the Tribunal at [25], [26] and [38] of its reasons were unsupported by evidence, irrational and unreasonable. As to that claim, in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135], Crennan and Bell JJ held as follows: 130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.131. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.…135. On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was. The Tribunal did not believe the first respondent's claim that he had engaged in the "practice of homosexuality" in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.