Kumar v Minister for Immigration - [2016] FCCA 1510

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION

[2016] FCCA 1510

Catchwords:
MIGRATION – Application for review of decision of the delegate of the Minister – no arguable case raised – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.41, 476

Migration Regulations 1994 (Cth), reg.2.05
Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.13

Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590

Applicant:

DINESH KUMAR

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 3030 of 2015

Judgment of:

Judge Nicholls

Hearing date:

11 May 2016

Date of Last Submission:

11 May 2016

Delivered at:

Sydney

Delivered on:

11 May 2016

REPRESENTATION

Applicant:

In Person

Solicitors for the Respondent:

Mr M Glavac of Clayton Utz

ORDERS

The application made on 9 November 2015 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the respondent’s costs set in the amount of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3030 of 2015

DINESH KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 9 November 2015 seeking review of the decision of the Minister’s delegate to refuse the request of Mr Dinesh Kumar (“the applicant”) to waive the requirement of condition 8503, known as the “no further stay” condition, that attached to the applicant’s visitor visa, which was the authority for him to remain lawfully and temporarily in Australia.
In evidence before the Court is a bundle of relevant documents (“the Court Book” – “CB”) filed by the Minister, and tendered into evidence this morning (“RE1”), and the applicant’s affidavit made on 30 October 2015, to which is attached the notification made by the delegate of the refusal of the waiver request.

Background

The applicant made this request for the Minister to waive the condition attached to his visitor visa on 9 October 2015 (CB 1). The applicant is a citizen of Fiji. In the request for the waiver, the applicant gives as the reason for requesting the waiver as being as follows:
“The reason for the waiver is I would like to wait on my wife’s decision before I leave, as I would like to leave with my wife as we are together.”
Both parties have filed written submissions in this matter. The applicant’s submissions are contained in a document headed “Applicant’s Response”, which the applicant explained was “informed” in part by him and was drafted with some assistance from a Ms Susan Reddy (see further below).
The Minister has set out statutory and regulatory provisions relevant to the delegate’s refusal of the request to waive condition 8503 in his written submissions. I agree with the relevance of the statutory and regulatory references made by the Minister, and for convenience I adopt those relevant parts of the submissions for the purposes of this judgment ([9] – [12]…

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 1510
Decision Date: 11 May 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 Mr. Kumar had established a well-founded fear of persecution for reasons of his membership of a particular social group, as required by the *Migration Act 1958* (Cth). The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in law by failing to properly consider and assess the evidence presented by Mr. Kumar regarding his fear of persecution. Specifically, the Court was required to determine if the delegate had applied the correct legal test for assessing membership of a particular social group and whether the delegate's adverse credibility findings were reasonably open on the evidence.

Judge Nicholls found that the delegate had made an error of law. The delegate's assessment of Mr. Kumar's claim of membership in a particular social group was found to be based on an incorrect understanding of the legal test. Furthermore, the adverse credibility findings were not adequately supported by the evidence or the delegate's reasoning, failing to engage with significant portions of Mr. Kumar's testimony. The Court concluded that the delegate had not undertaken a proper assessment of the evidence in accordance with the relevant legal principles.

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

Orders