Kumar v Minister for Immigration & Border Protection - [2018] FCA 140

FEDERAL COURT OF AUSTRALIA
Kumar v Minister for Immigration and Border Protection [2018] FCA 140

Appeal from: Application for extension of time and leave to appeal: Kumar & Anor v Minister for Immigration & Anor [2017] FCCA 2406

File number: NSD 1854 of 2017

Judge: ROBERTSON J

Date of judgment: 21 February 2018

Catchwords: MIGRATION – application for extension of time and leave to appeal from interlocutory judgment of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal – that Tribunal affirmed the decisions not to grant the applicants Skilled (Provisional) (Class VC) visas – application for visas not accompanied by evidence that the first applicant had undertaken an International English Language Testing System test within the three years before the day on which the application was made – Held: application for extension of time and leave to appeal refused

Legislation:
Migration Regulations 1994 (Cth) Sch 2, cl 485.212

Migration Regulations 1994 - Specification of English Language Tests, Scores and Passports 2015 - IMMI 15/062

Cases cited:
Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417

Gowda & Ors v Minister For Immigration & Anor [2016] FCCA 3491

Date of hearing: 21 February 2018

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 26

Counsel for the Applicants: The First Applicant appeared in person on behalf of all the Applicants

Solicitor for the First Respondent: Ms E Warner Knight of Australian Government Solicitor

Counsel for the Second Respondent: The Second Respondent submitted save as to costs

ORDERS

NSD 1854 of 2017

BETWEEN:
SHIVANI KUMAR

First Applicant

SUMIT KUMAR

Second Applicant

AND:
MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

ROBERTSON J

DATE OF ORDER:

21 FEBRUARY 2018

THE COURT ORDERS THAT:
1.The application for extension of time and leave to appeal is dismissed.
2.The applicants pay the first respondent’s costs, as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
ROBERTSON J:
Introduction

The applicants are citizens of India. The first applicant, Mrs Kumar obtained a student visa on 2 August 2014. The second applicant is the husband of the first applicant and was granted a visa as a member of the first applicant’s family on the same day. On 6 December 2016 the applicants applied for the visas the subject of these proceedings.
This is an application for an extension of time to seek leave to appeal and an application for leave to appeal from a judgment of the Federal Circuit Court of Australia (FCCA) given on 29 September 2017.
That application was filed on 23 October 2017.
As to the application for extension of time, the first applicant says in an affidavit sworn on 23 October 2017 that the reasons for judgment in the FCCA were…

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] FCA 140
Decision Date: 21 February 2018

CaseChat Overview and Summary

The applicants, Kumar and his wife, sought an extension of time and leave to appeal against an interlocutory judgment of the Federal Circuit Court, which dismissed their application for judicial review of a decision by the Administrative Appeals Tribunal (AAT). The AAT had upheld the Minister's refusal to grant them Skilled (Provisional) (Class VC) visas. The basis for the refusal was that the applicants' visa application was not accompanied by evidence that the primary applicant had undertaken an International English Language Testing System test within the three years preceding the application date. The applicants argued that they had provided all necessary documentation and that the AAT erred in its interpretation of the relevant visa criteria.

The central legal issue before the court was whether the applicants had demonstrated sufficient grounds to warrant an extension of time and leave to appeal. The applicants contended that they had a reasonable prospect of success on appeal and that the Federal Circuit Court had erred in its interpretation of the relevant legislative provisions. They argued that the AAT had misapplied the visa criteria by overlooking certain evidence provided in their application. The Minister, on the other hand, submitted that the applicants had not shown any error of law or fact that warranted an extension of time or leave to appeal.

The court examined the applicants' arguments and found that they did not demonstrate a reasonable prospect of success on appeal. The court held that the AAT's decision was consistent with the relevant legislative provisions and that the applicants had not provided sufficient evidence to rebut the presumption that the primary applicant had not met the English language requirement. The court concluded that there were no grounds to grant an extension of time or leave to appeal, and thus dismissed the application. The applicants were ordered to pay the Minister's costs, as agreed or assessed.

Orders

Orders of the court

1. The application for extension of time and leave to appeal is dismissed.

2. The applicants pay the first respondent’s costs, as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Application for extension of time and leave to appeal: Kumar & Anor v Minister for Immigration & Anor [2017] FCCA 2406
File number:	NSD 1854 of 2017
Judge:	ROBERTSON J
Date of judgment:	21 February 2018
Catchwords:	MIGRATION – application for extension of time and leave to appeal from interlocutory judgment of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal – that Tribunal affirmed the decisions not to grant the applicants Skilled (Provisional) (Class VC) visas – application for visas not accompanied by evidence that the first applicant had undertaken an International English Language Testing System test within the three years before the day on which the application was made – Held: application for extension of time and leave to appeal refused
Legislation:	Migration Regulations 1994 (Cth) Sch 2, cl 485.212 Migration Regulations 1994 - Specification of English Language Tests, Scores and Passports 2015 - IMMI 15/062
Cases cited:	Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417 Gowda & Ors v Minister For Immigration & Anor [2016] FCCA 3491
Date of hearing:	21 February 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	26
Counsel for the Applicants:	The First Applicant appeared in person on behalf of all the Applicants
Solicitor for the First Respondent:	Ms E Warner Knight of Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent submitted save as to costs

JUDGE:	ROBERTSON J
DATE OF ORDER:	21 FEBRUARY 2018