Kumar v Minister for Immigration & Anor - [2018] FCCA 678

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 678

Catchwords:
MIGRATION – Student visa – clause 572.231 – whether student intended genuinely to stay in Australia temporarily – applicant’s marriage failing – applicant purporting to resume study after 14 year gap – not genuine.

PARTICULARS – None given by applicant – application amenable to dismissal for that reason alone – four key cases in the Federal Court of Australia cited.

Legislation:

Migration Regulations1994 (Cth) sch.2 cl 572.223(1)(a)

Cases cited:

AQN15 v Minister for Immigration and Border Protection [2016] FCA 571
BHK15 v Ministerfor Immigration and Border Protection [2016] FCA 569
Craig v South Australia (1995) 184 CLR 163
Kaur v Minister [2016] 304 FLR 436
Kirk v Industrial Relations Court (2010) 239 CLR 531
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Applicant:

SUNNY KUMAR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2063 of 2015

Judgment of:

his Honour Judge Wilson

Hearing date:

7 March 2018

Date of Last Submission:

7 March 2018

Delivered at:

Melbourne

Delivered on:

13 March 2018

REPRESENTATION

Applicant:

In person

Solicitors for the Applicant:

None

Counsel for the First Respondent:

Solicitors for the First Respondent:

Sparke Helmore Lawyers

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Sparke Helmore Lawyers

ORDERS

I dismiss this proceeding.
I order the applicant to pay the first respondent’s costs in the fixed sum of $5500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2063 of 2015

SUNNY KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINIISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Introduction

On 21 August 2014, the applicant applied for a Student (Temporary) (Class TU) visa, and on 3 December 2014, the minister’s delegate refused that application.
On 12 November 2014, the applicant applied for a merits review of his visa application before the Migration and Review Division of the Administrative Appeals Tribunal.
On 13 August 2015, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa he sought. Being dissatisfied with the decision of the Tribunal, on 10 September 2015 the applicant applied for the issue of constitutional writs on the basis that the Tribunal had fallen into jurisdictional error.

A brief history

The applicant relied on two grounds of application in this proceeding. It is useful to record them verbatim. They were –
“I am not happy with the decision because I am a genuine student, was studying during MRT and still completing my course (2) if I complete my hospitality study in Australia and want to be perfect in this professional so it’s easy for me to get a job in India, I think and requesting decision should be reviewed.”(sic)
Naturally, the linguistic complications in that quoted section immediately above are to be explained by the fact that English is not 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: [2018] FCCA 678
Decision Date: 13 March 2018

CaseChat Overview and Summary

This matter concerned an appeal by Mr Kumar against a decision of the Minister for Immigration and Border Protection. Mr Kumar had applied for a student visa, specifically under clause 572.231 of the Migration Regulations. The central dispute revolved around whether Mr Kumar genuinely intended to stay in Australia temporarily for the purpose of study, as required by the visa provisions.

The court was required to determine whether the primary decision-maker had erred in finding that Mr Kumar did not genuinely intend to study in Australia temporarily. This involved assessing the applicant's circumstances, including a significant 14-year gap in his purported studies and the failure of his marriage, in light of the legislative requirements for a student visa. The court also considered whether the application was deficient due to a lack of particulars provided by the applicant.

His Honour Judge Wilson found that the applicant's circumstances, particularly the prolonged absence from study and the marital breakdown, cast significant doubt on his genuine intention to pursue studies temporarily in Australia. The court applied the principles established in key Federal Court decisions concerning the assessment of genuine temporary entrant criteria. The lack of particulars provided by the applicant was also considered a potentially fatal flaw in the application, capable of leading to its dismissal on that ground alone. The appeal was dismissed.

Orders