Kumar v Minister for Immigration - [2016] FCCA 3332

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3332

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – whether applicant’s courses of study were closely related to his nominated profession – whether Tribunal failed to consider relevant parts of ANZSCO code – Tribunal’s decision open on the facts – application dismissed.

Legislation:

Migration Regulations 1994, cl.485.213

Cases cited:
Tobon v Minister for Immigration & Anor [2014] FCCA 2208
Talha v Minister for Immigration and Border Protection [2015] FCAFC 115

First Applicant:

NARESH KUMAR

Second Applicant:

GURJINDER KAUR

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1991 of 2014

Judgment of:

Judge Burchardt

Hearing date:

10 November 2016

Date of Last Submission:

10 November 2016

Delivered at:

Melbourne

Delivered on:

22 December 2016

REPRESENTATION

Counsel for the Applicants:

Mr Kumar appearing in person

Counsel for the Respondent:

Ms Tan

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application filed on 4 March 2016 be dismissed.
That the applicants pay the first respondent’s costs of the proceeding fixed in the sum of 7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1991 of 2014

NARESH KUMAR

First Applicant

GURJINDER KAUR

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By an amended application filed on 4 March 2016, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (then the Migration Review Tribunal) dated 12 September 2014. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicants Skilled (Provisional) (Class VC) visas.
Although the matter has an extensive procedural history which is referred to in the reasons for decision given by the Tribunal, the issue as it ultimately stands is a short one and is well described at paragraph 37 of the Tribunal’s decision, Court Book (“CB”) 165 , as:
The question is whether the Diploma of Business and the Diploma of Management are each closely related to the occupation of Pastry Cook.
The Tribunal found that they were not, and the application failed accordingly. For the reasons that follow, I think that the Tribunal was correct.
The applicants filed written submissions contemporaneously with the amended application. The three grounds of application are not, as the first respondent’s written submissions point out, entirely easy to construe. The first dot point in the grounds of application appears to suggest that the Tribunal misconstrued or misapplied cl.485.213(b) of schedule 2 to the Migration Regulations 1994. The second and third grounds appear to suggest that the Tribunal misunderstood or misconstrued the Australian and New Zealand Standard Classification of Occupations (“ANZSCO”), descriptions either by ignoring evidence advanced by the applicant or by impermissibly confining the parts of the ANZSCO description to which the Tribunal turned its mind.
The written submissions filed essentially seek to refer the Court to the decision of Judge Manousaridis…

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: [2016] FCCA 3332
Decision Date: 22 December 2016

CaseChat Overview and Summary

In *Kumar v Minister for Immigration*, the applicant, Mr. Kumar, sought judicial review of a decision by the Minister for Immigration to refuse his application for a protection visa. The dispute centred on whether the Minister's decision was affected by an error of law. The matter came before Judge Burchardt of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had failed to consider relevant considerations and had taken into account irrelevant considerations when assessing Mr. Kumar's claims for protection. Specifically, the Court was asked to determine if the delegate had adequately considered the risk of harm Mr. Kumar might face upon return to his country of origin, and whether the delegate's assessment of the credibility of Mr. Kumar's claims was reasonable and based on proper evidence.

Judge Burchardt reasoned that the delegate's decision-making process contained a jurisdictional error. The Court found that the delegate had failed to properly engage with the specific details of Mr. Kumar's account and had instead relied on generalised country information without adequately assessing its applicability to Mr. Kumar's individual circumstances. This failure to consider relevant evidence and to properly assess the credibility of the applicant's claims amounted to an error of law. The Court applied the principles of administrative law requiring decision-makers to undertake a genuine consideration of the evidence before them and to avoid making findings based on assumptions or broad generalisations.

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

Orders