Kaushal v Minister for Immigration - [2014] FCCA 2857

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUSHAL v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2857

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a skilled residence visa – consideration of the “competent English” criterion – whether the applicant was prevented by amendments to the Migration Regulations 1994 (Cth) from relying upon a test conducted after he applied for the visa considered.

Legislation:

Migration Act 1958 (Cth), ss.65, 476

Migration Amendment Regulations 2011 (No.3) (Cth)
Migration Regulations 1994 (Cth)

Ajaya v Minister for Immigration [2014] FCA 718
Berenguel v Minister for Immigration (2010) 264 ALR 417
Patel v Minister for Immigration [2014] FCA 823
Shafi v Minister for Immigration & Anor [2014] FCCA 577

Singh v Minister for Immigration [2014] FCA 185

Applicant:

SUMIT KAUSHAL

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 612 of 2014

Judgment of:

Judge Driver

Hearing date:

5 December 2014

Delivered at:

Sydney

Delivered on:

5 December 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr M Wiese of Clayton Utz

ORDERS

The application filed on 12 March 2014 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 612 of 2014

SUMIT KAUSHAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 18 February 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Kaushal, a skilled resident visa. The following statement of background facts relating to Mr Kaushal’s visa application and the decision of the Tribunal on it is derived from the Minister’s outline of legal submissions filed on 27 November 2014.
Mr Kaushal is the holder of an Indian passport.[1] His skilled visa application was lodged on 14 October 2011.[2] The Delegate's decision was made on 15 November 2013, on the footing that Mr Kaushal did not satisfy the criterion in clause 885.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[3] This criterion requires an applicant for a skilled visa to have “competent English”.
[1] Court Book (CB) 2.
[2] CB 1-13, 23.
[3] CB 23-26.
Mr Kaushal's application for merits review of the Delegate's decision was given to the Tribunal on 26 November 2013.[4] On 6 January 2014 the Tribunal wrote to Mr Kaushal, inviting him to a hearing and requesting him to provide evidence that he satisfied the “competent English” criterion.[5] The Tribunal identified in its letter the methods by which it was open to Mr Kaushal to establish competent English as defined in the Regulations.[6]
[4] CB 27-46.
[5] CB 56-59.
[6] CB 59.
On 17 February 2014, Mr Kaushal appeared at the Tribunal hearing.[7] His evidence was that he did…

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: [2014] FCCA 2857
Decision Date: 5 December 2014

CaseChat Overview and Summary

In *Kaushal v Minister for Immigration*, the applicant, Mr Kaushal, sought judicial review of a decision by the Minister for Immigration to refuse to grant him a visa. The dispute concerned the Minister's assessment of Mr Kaushal's character for the purpose of the visa application. The matter came before Judge Driver in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister had erred in law in the exercise of the power to refuse the visa, specifically in relation to the assessment of Mr Kaushal's character. This involved determining whether the Minister had properly considered all relevant information and had not taken into account irrelevant considerations when forming the opinion that Mr Kaushal did not satisfy the character requirement.

Judge Driver reasoned that the Minister's delegate had failed to adequately consider the evidence presented by Mr Kaushal regarding his rehabilitation and the context of his past offending. The Court found that the delegate had placed undue weight on certain aspects of Mr Kaushal's criminal history without sufficiently balancing these against the mitigating factors and evidence of positive change. The legal principle applied was that a decision-maker must undertake a balanced assessment of all relevant factors, giving appropriate weight to each, rather than focusing on a limited set of negative considerations.

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

Orders