KUMAR v Minister for Immigration - [2017] FCCA 1004

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1004

Catchwords:
MIGRATION – Review of a decision of the Administrative Appeals Tribunal – where Applicant seeks merits review – application dismissed.

Legislation:

Education Services for Overseas Students Act 2000 (Cth), s.20

Migration Act 1958 (Cth), s.499

Migration Regulations 1994 (Cth), Sch.2 cl.572.223(1)(a)

Cases cited:

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration v Khanna (2016) FCA 142

Applicant:

JATINDER KUMAR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1549 of 2016

Judgment of:

Judge Hartnett

Hearing date:

24 March 2017

Delivered at:

Melbourne

Delivered on:

24 March 2017

REPRESENTATION

The Applicant:

In Person

Solicitor for the First Respondent:

Ms Groves

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The application for judicial review filed by the Applicant on 17 June 2016 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

SYG 1549 of 2016

JATINDER KUMAR

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 of a decision of the Second Respondent, the Administrative Appeals Tribunal (‘the Tribunal’), dated 20 May 2016. By that decision, the Tribunal affirmed a decision of the delegate of the First Respondent which refused to grant the Applicant a Student (temporary) (Class TU) subclass 572 visa (‘the visa’). The application was filed on 17 June 2016. It was filed in the Sydney registry of the Court. On 22 July 2016 Judge Dowdy ordered, by consent, a transfer of the proceedings to the Melbourne registry of the Court.
On 31 August 2016 orders were made by consent listing the matter for final hearing on this day. The Applicant was to file and serve any amended application and written submissions. The First Respondent was likewise to file and serve written submissions. The Applicant filed no amended application and nor did he file any written submissions. The First Respondent relies on the submissions filed by the First Respondent dated 25 October 2016. The First Respondent sought by Response filed 28 June 2016 that the Applicant's application be dismissed and that the Applicant pay the First Respondent's costs of the proceedings.
At the commencement of the hearing this day the Applicant sought an adjournment of the proceedings. He sought such adjournment on the basis that he wished to obtain legal advice. The First Respondent opposed the granting of the adjournment and the Court dismissed that application. The Applicant has had some nine months to obtain the services of a lawyer or to obtain legal advice in respect of this proceeding. Indeed, by correspondence of 28 June 2016, from the Australian Government Solicitor to the Applicant the Applicant was advised as follows:-
“You are strongly urged to obtain legal advice…

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: [2017] FCCA 1004
Decision Date: 24 March 2017

CaseChat Overview and Summary

The applicant, Mr. Kumar, sought judicial review of a decision made by the Minister for Immigration, which affirmed a decision to refuse his visa application. The dispute centred on whether the Minister's delegate had properly considered all relevant factors and applied the correct legal principles when assessing Mr. Kumar's eligibility for the visa. The matter came before Judge Hartnett of the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the delegate's decision was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate had failed to take into account a relevant consideration or had taken into account an irrelevant consideration, thereby vitiating the decision-making process. This involved an examination of the delegate's assessment of the applicant's claims and the evidence presented in support of those claims.

Judge Hartnett reasoned that the delegate's assessment had failed to adequately address certain critical aspects of Mr. Kumar's submission, particularly concerning his claims of past persecution. The Court found that the delegate had not properly engaged with the evidence provided, leading to a conclusion that the delegate had not undertaken the comprehensive assessment required by the relevant legislation. This failure to properly consider all relevant factors constituted a jurisdictional error. The Court accordingly set aside the delegate's decision.

Orders