Kumar v Minister for Immigration - [2013] FCCA 1440

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1440

Catchwords:
MIGRATION – Applicant appointed an agent – invitation to appear at Tribunal sent to agent via prepaid registered post – invitation returned to sender unclaimed – no attendance by applicant at Tribunal hearing – inadequacy of information given as reason for Tribunal’s decision – whether it was reasonable for the Tribunal to take no further steps to bring the matter to the applicant’s personal attention.

Legislation:

Migration Act 1958 (Cth), ss.357A359A, 359C, 360, 360A, 362B, 379A, 379G, 426A,476

Haque v Minister for Immigration & Citizenship [2010] FCA 346
NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
SZFOH v Minister for Immigration and Citizenship [2007] FCAFC 63
Minister for Immigration and Citizenship v Li [2013] HCA 8

Applicant:

SANJEEV KUMAR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

BRG 528 of 2013

Judgment of:

Judge Demack

Hearing date:

20 September 2013

Date of Last Submission:

20 September 2013

Delivered at:

Brisbane

Delivered on:

23 September 2013

REPRESENTATION

Counsel for the Applicant:

Mr Burrow

Solicitors for the Applicant:

Gopal and Chand Lawyers

Counsel for the Respondent:

Mr Alderton

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application of Sanjeev Kumar filed on 28 June 2013 be dismissed pursuant to rule 16.01 of the Federal Circuit Court Rules 2001.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of five thousand, eight hundred dollars ($5,800.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 528 of 2013

SANJEEV KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application dated 28 June 2013 under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) concerning a decision made by the Migration Review Tribunal (“the Tribunal”) on 28 May 2013 to affirm a decision of a delegate of the first respondent not to grant a subclass 572 Vocational Education and Training Sector Visa to Mr Kumar.
Mr Kumar had failed to appear before the Tribunal. He did not know that his matter was before the Tribunal on the allotted day as the invitation was sent to his appointed agent’s postal address and had been returned to sender unclaimed.
The relief sought by Mr Kumar is that an order be made quashing the decision of the Tribunal or Minister or, conversely, a writ of mandamus be directed to the Tribunal or Minister, requiring them to determine his application according to law.
He seeks such relief based on the following grounds:
1. The Tribunal engaged in conduct which amounted to jurisdictional error in the following respects:
a. That the Tribunal erred in that it denied the Applicant procedural fairness in failing to give him an opportunity to respond to matters raised by the Tribunal;
b. That 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: [2013] FCCA 1440
Decision Date: 23 September 2013

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.

The primary legal issue before Judge Demack was whether the Minister's delegate had erred in law by failing to properly consider the evidence relating to Mr. Kumar's alleged persecution as a member of a particular social group, specifically, individuals who had been involved in political activism against the ruling regime in their home country. The court was required to determine if the delegate's assessment of the evidence was reasonable and whether the delegate had applied the correct legal test for establishing membership of a particular social group under the *Migration Act 1958* (Cth) and relevant international refugee law principles.

Judge Demack found that the delegate had failed to adequately assess the evidence concerning the applicant's political activities and the potential consequences he might face upon return to his country of origin. The court held that the delegate's reasoning was flawed because it did not sufficiently engage with the specific risks identified by the applicant and did not properly consider whether these risks constituted persecution for reasons of his imputed political opinion or membership of a particular social group. The principle applied was that a delegate must undertake a comprehensive and balanced assessment of all relevant evidence, giving due weight to the applicant's claims and the objective country information.

The court ordered that the decision of the Minister's delegate be set aside and remitted to the Minister for reconsideration according to law.

Orders