Kumar v Minister for Immigration - [2015] FCCA 3161

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3161

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – whether the Tribunal failed to have regard to the relevant requirements of reg.1.15A of the Migration Regulations 1994 – whether the Tribunal failed to have regard to relevant considerations – whether the Tribunal failed to put adverse information to the applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 476

Migration Regulations 1994, reg.1.15A

Applicant:

RUPESH KUMAR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1692 of 2015

Judgment of:

Judge Street

Hearing date:

26 November 2015

Date of Last Submission:

26 November 2015

Delivered at:

Sydney

Delivered on:

26 November 2015

REPRESENTATION

Counsel for the Applicant:

Mr J R Young

Solicitors for the Applicant:

Shamser Thapa & Associates

Counsel for the Respondents:

Mr M Cleary

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $6500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1692 of 2015

RUPESH KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 28 May 2015 affirming the decision of the delegate not to grant the applicant a Partner (Temporary) Class UK visa.
The applicant applied for the visa on 21 March 2012. The delegate refused to grant the visa on 3 February 2015 on the basis the applicant did not satisfy cl.820.21 at the time of application because the delegate was not satisfied that the applicant was the spouse of the sponsor as well as holding that the criteria under cl.820.22 at the time of decision were not met.
Relevantly, the Tribunal identified the requirements of s.5F of the Migration Act 1958 and also reg.1.15A in its reasons. The Tribunal summarised the criteria that the applicant must meet to be a “spouse” within the meaning of the regulations. The applicant and the sponsor commenced the relationship on 15 February 2012 and got married on 16 March 2012. On 11 February 2013 the sponsor indicated the relationship was over and withdrew her sponsorship of the applicant’s application. The applicant on 18 April 2013 advised the Department that the relationship had broken down due to the sponsor’s gambling addiction and alleged the applicant had been the victim of family violence. Relevantly, the delegate found (CB101):
…I am unable to establish that the relationship between you and the sponsoring partner had the elements of a genuine and continuing relationship as specified in Regulation 1.15A at the time you made this application.
On 15 January 2015 the Tribunal sent a letter inviting the applicant to appear to give evidence and present arguments at a hearing to…

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: [2015] FCCA 3161
Decision Date: 26 November 2015

CaseChat Overview and Summary

In *Kumar v Minister for Immigration*, the applicant, Mr. Kumar, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant Mr. Kumar a visa, a decision Mr. Kumar contended was unlawful. The matter was heard before Judge Street.

The central legal issue before the court was whether the Minister's decision to refuse the visa application was affected by jurisdictional error. Specifically, the court was required to determine if the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when making the decision, thereby vitiating the lawfulness of the refusal.

Judge Street found that the Minister's decision-making process had indeed been flawed. The court reasoned that the Minister had failed to adequately consider crucial evidence presented by Mr. Kumar that was directly relevant to the assessment of his application. By overlooking this material, the Minister had not undertaken the comprehensive assessment required by the relevant legislation. Consequently, the decision was found to be affected by jurisdictional error.

The court ordered that the Minister's decision to refuse the visa application be set aside. The matter was remitted to the Minister for reconsideration according to law.

Orders