Kumar v Minister for Immigration and Border Protection - [2021] FCCA 1868

FEDERAL CIRCUIT COURT OF AUSTRALIA
Kumar v Minister for Immigration and Border Protection [2021] FCCA 1868

File number(s): MLG 167 of 2017

Judgment of: JUDGE LUCEV

Date of judgment: 10 August 2021

Catchwords:
MIGRATION – judicial review – citizen of India – decision of Administrative Appeals Tribunal – Partner (Temporary) (Class UK) Subclass 820 visa

PRACTICE AND PROCEDURE – where applicant alleges errors in interpreting at first hearing – whether further submissions and hearings

Legislation:
Federal Circuit Court of Australia Act 1999 (Cth), s 55

Federal Circuit Court Rules 1999 (Cth)

Cases cited:
Bunnag v Minister for Immigration (No.2) [2008] FMCA 430

SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436

Number of paragraphs: 11

Date of hearing: 10 August 2021

Place: Perth

For the Applicant: Appeared in person (via Microsoft Teams with the assistance of a Punjabi Interpreter)

Counsel for the First Respondent: Mr K. Sypott (via Microsoft Teams)

Solicitor for the Respondents: Australian Government Solicitor

For the Second Respondent: Submitting appearance, save as to costs
ORDERS

MLG 167 of 2017

BETWEEN:
RAKESH KUMAR

Applicant

AND:
MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE LUCEV

DATE OF ORDER:

10 AUGUST 2021

THE COURT ORDERS THAT:
1.By 7 September 2021 a Registrar of this Court provide to the parties by email:
(a)an electronic copy of the recording of the proceeding of this matter on 26 July 2021 at 10:01 am to 11:02 am (“the Proceedings”); and
(b)an electronic copy of the written transcript of the Proceedings, produced for the Commonwealth by Auscript.

2.By 7 October 2021 the Applicant file and serve any affidavits concerning any alleged errors by the interpreter in interpreting what was said by the parties or by the Court in the Proceedings.
3.If the Applicant does not comply with Order 2, the matter remains reserved for judgment on the basis of the Proceedings as they presently stand.
4.If the Applicant does comply with Order 2:
(a)the First Respondent to file and serve any affidavits in reply by 7 November 2021, limited to the issue of errors in interpreting the Proceedings;
(b)the Applicant to file and serve written submissions by 7 December 2021, limited to the issue of errors in interpreting the Proceedings;
(c)the First Respondent to file and serve any written submissions in reply by 7 January 2021, limited to the issue of errors in interpreting the Proceedings;
(d)the matter be listed for further hearing at 12:30 pm AWST / 3:30 pm AEDT on 24 January 2022, with leave for the parties to appear via video link; and
(e)pursuant to s 55(1) of the Federal Circuit Court of Australia Act 1999 (Cth) the hearing be limited to a total hearing time of 1 hour and 15 minutes, with the Applicant and First Respondent being given a maximum of 30 minutes each for oral submissions and the Applicant being given a maximum 10 minutes for oral submissions…

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: [2021] FCCA 1868
Decision Date: 10 August 2021

CaseChat Overview and Summary

The Federal Court of Australia, constituted by Justice Lucev, considered the application of Mr. Kumar for judicial review of a decision made by the Minister for Immigration and Border Protection. Mr. Kumar sought to challenge the lawfulness of the Minister's decision to refuse his application for a Protection visa. The core of the dispute concerned the assessment of Mr. Kumar's claims for protection against alleged persecution in his country of origin.

The primary legal issue before the Court was whether the delegate of the Minister had properly considered and assessed Mr. Kumar's claims for protection, particularly in light of the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). This involved examining whether the delegate had adequately addressed the subjective and objective elements of Mr. Kumar's fear of persecution and whether the assessment of his claims was affected by any error of law.

Justice Lucev's reasoning focused on the principles of administrative decision-making, particularly the requirement for a decision-maker to undertake a comprehensive and logical assessment of the evidence presented. The Court considered whether the delegate had failed to give sufficient weight to certain aspects of Mr. Kumar's evidence or had made findings that were not supported by the material before them. The judgment affirmed that a delegate must engage with the entirety of the applicant's case and provide reasons that demonstrate a proper understanding and evaluation of the claims made. The Court ultimately found that the delegate's decision contained an error of law, specifically in the assessment of the credibility and relevance of certain evidence.

Orders