Kumar v Minister for Immigration - [2020] FCCA 4

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 4

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – Tribunal finding the relationship to be contrived – general grounds of review – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5F, 359, 359A, 359AA, 375, 375A, 438
Migration Regulations 1994 (Cth)

Cases cited:

Applicant:

SATISH KUMAR

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1642 of 2019

Judgment of:

Judge Driver

Hearing date:

29 November 2019

Delivered at:

Sydney

Delivered on:

26 February 2020

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms K Morris of Clayton Utz

ORDERS

The application filed on 3 July 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1642 of 2019

SATISH KUMAR

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant, Mr Kumar, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 June 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Kumar a partner (residence) visa.
The delegate had refused to grant Mr Kumar a partner (Residence) (Class BS) (Subclass 801) visa (permanent partner visa), for which he had applied on 16 August 2012.[1] A previous decision of the Tribunal (differently constituted) made on 3 May 2017 had been set aside by consent on 25 October 2017 on the basis that the Tribunal had failed to consider all of the matters within regulation 1.15A(3) of the Migration Regulation 1994 (Cth) (Regulations).[2] Following the remittal of the matter, Mr Kumar appeared twice before the Tribunal to give further evidence and submissions.[3]
[1] Court Book (CB) 1-45
[2] CB 288-292, 342 [4]
[3] CB 342 [5]
Mr Kumar is a citizen of India, who first arrived in Australia on 12 November…

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 4
Decision Date: 26 February 2020

CaseChat Overview and Summary

In *Kumar v Minister for Immigration*, the applicant sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) affirming the refusal of a partner visa. The AAT had found that the applicant's relationship was not genuine and was therefore contrived, leading to the refusal of the visa.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the AAT had committed jurisdictional error in its review of the delegate's decision to refuse the partner visa. Specifically, the court considered whether the AAT's findings regarding the genuineness of the relationship were affected by an error of law.

Judge Driver found that the AAT had properly considered the evidence before it and had applied the correct legal principles in assessing the applicant's relationship. The Tribunal's conclusion that the relationship was contrived was a finding of fact based on the evidence, and did not constitute jurisdictional error. The court therefore dismissed the application for review.

Orders