Kumar v Minister for Immigration - [2020] FCCA 2170

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2170

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary) (class TU) Student (subclass 500) visa – whether the Tribunal failed to provide procedural fairness – whether the Tribunal failed to consider the relevant information – whether the Tribunal fell into jurisdictional error by acting beyond its power – whether the Tribunal acted contrary to s 359 and s 358 of the Migration Act 1958 (Cth) requirements and failed to make a decision under review for cancellation – whether the Tribunal failed in performing primary purpose of review – whether the Tribunal failed to be legally reasonable or exercising excessive power contrary to its objective, purpose, way of operation and power – whether the Tribunal failed to act accordingly to the requirements of s 362B of the Migration Act 1958 (Cth) – whether the Tribunal misapplied or misconstrued ‘appearing requirement’ – whether the Tribunal made jurisdictional error by overarching its authority – whether the Tribunal was unreasonable and procedurally unfair – whether jurisdictional error is made out – no jurisdictional error – application is dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), ss, 24, 33, 43

Migration Act 1958 (Cth), ss, 357, 358, 359, 360, 362, 366, 368, Division 5 of

Part 5

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

MZAHI v Minister for Immigration and Border Protection [2016] FCA 129

NAKX v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1559

Singh v Minister for Home Affairs (2019) 267 FCR 200

Applicant:

SUNIL KUMAR

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 457 of 2020

Judgment of:

Judge Humphreys

Hearing date:

6 August 2020

Date of Last Submission:

6 August 2020

Delivered at:

Parramatta

Delivered on:

14 August 2020

REPRESENTATION

Solicitors for the Applicant:

Mr Bhatta, Residency Legal

Counsel for the Respondents:

Mr Johnson

Solicitors for the Respondents:

Hwl Ebsworth Lawyers

ORDERS

The application is dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 457 of 2020

SUNIL KUMAR

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of India. On 13 April 2018, the applicant was granted a Student (Temporary) (class TU) Student (subclass 500) visa. The visa was to enable the applicant to study a Bachelor of Accounting at Group Colleges Australia Pty Ltd.
On 20 September 2019, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his visa. This was on the basis that the applicant had discontinued his studies in a Bachelor of Accounting and instead, enrolled in two Vocational Education Training (“VET”) courses, being a Certificate IV in Commercial Cookery and a Diploma in Hospitality Management. It was alleged that this constituted a…

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: [2020] FCCA 2170
Decision Date: 14 August 2020

CaseChat Overview and Summary

The applicant, Mr. Kumar, sought judicial review of a decision made by the Administrative Appeals Tribunal. The dispute concerned Mr. Kumar's application for a Student (Temporary) (class TU) Student (subclass 500) visa. The core of the application was an assertion that the Tribunal had committed jurisdictional error.

The court was required to determine whether the Tribunal had failed to provide procedural fairness to Mr. Kumar, whether it had failed to consider relevant information, and whether it had acted beyond its powers. Specifically, the court examined whether the Tribunal had acted contrary to sections 359 and 358 of the *Migration Act 1958* (Cth) by failing to make a decision under review for cancellation, and whether it had failed in its primary purpose of review. Further issues included whether the Tribunal had acted unreasonably, exercised excessive power contrary to its objectives and purpose, or failed to act in accordance with section 362B of the *Migration Act 1958* (Cth). The court also considered whether the Tribunal had misapplied or misconstrued the 'appearing requirement' and whether it had overarching its authority.

Justice Humphreys found that the Tribunal had not made jurisdictional error. The reasoning focused on the Tribunal's adherence to its statutory obligations and the proper exercise of its powers. The court concluded that the Tribunal had not acted unreasonably or in a manner that breached procedural fairness, nor had it exceeded its authority.

Consequently, the application for judicial review was dismissed.

Orders