Kumar v Minister for Immigration - [2020] FCCA 1198

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1198

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a business visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.359A

Migration Regulations 1994 (Cth)

Cases cited:

Kaur v Minister for Immigration [2018] FCCA 141

Quan v Minister for Immigration [2013] FCA 1239

Applicant:

ANIL KUMAR

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2953 of 2019

Judgment of:

Judge Driver

Hearing date:

15 May 2020

Delivered at:

Sydney

Delivered on:

15 May 2020

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Respondents:

Mr A Downie of Minter Ellison by telephone

INTERLOCUTORY ORDERS

Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2953 of 2019

ANIL KUMAR

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant, Mr Kumar, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 31 October 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Kumar a temporary business entry visa. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 7 May 2020.
Mr Kumar is a citizen of India. On 5 April 2016, he arrived in Australia as the holder of a short stay specialist (Subclass 400) visa (short stay visa), which was granted on a three month multiple entry basis.[1] On 5 July 2016, the short stay visa expired and Mr Kumar became an unlawful non-citizen.[2]
[1] Court Book (CB) 47
[2] CB 47
On 31 August 2016 Mr Kumar lodged an application for a skilled visa.[3] He indicated as his nominating employer, K. M. Sons Pty Ltd t/a The Sapphire Function Centre, in the nominated position of chef.[4]
[3] CB 1–12
[4] CB 7
On 21 October 2016 the delegate refused the application for a skilled visa, having not been satisfied that Mr Kumar met clauses 3003, 3004 or 3005 of Schedule 3 to the Migration Regulations 1994 (Cth) (Regulations).[5]
[5] CB 45–50
On 27 October 2016 Mr Kumar sought review of the delegate's decision before the Tribunal.[6]
[6] CB 51–52
On 30 July 2019 the Tribunal wrote to Mr Kumar inviting his comment on information it considered would be part of the reason for affirming the decision under review. The…

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 1198
Decision Date: 15 May 2020

CaseChat Overview and Summary

In *Kumar v Minister for Immigration*, Driver J of the Federal Court of Australia considered an application for judicial review of a decision by the Administrative Appeals Tribunal (AAT). The applicant, Mr. Kumar, sought to challenge the AAT's refusal to grant him a business visa. The central dispute revolved around the AAT's interlocutory dismissal of Mr. Kumar's application to issue a "show cause" notice.

The primary legal issue before the Court was whether the AAT had engaged in jurisdictional error by dismissing Mr. Kumar's show cause application without affording him an arguable case. This required the Court to determine if the AAT's decision to dismiss the application was so devoid of any arguable basis that it amounted to a failure to exercise its jurisdiction according to law.

Driver J reasoned that the AAT's decision to dismiss the show cause application was not attended by jurisdictional error. His Honour found that the applicant had not established an arguable case that the AAT had failed to consider relevant material or had otherwise acted outside its legal powers. The Court applied the principles governing judicial review for jurisdictional error, emphasizing that such error must be substantial and not merely a question of error of law within jurisdiction.

The application for judicial review was dismissed.

Orders