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Kumar v Minister for Immigration, Citizenship and Multicultural Affairs

Kumar v Minister for Immigration, Citizenship and Multicultural Affairs

Case [2022] FedCFamC2G 1074 23 December 2022

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Federal Circuit and Family Court of Australia
(DIVISION 2)
Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1074

File number(s): MLG 1451 of 2018

Judgment of: JUDGE EGAN

Date of judgment: 23 December 2022

Catchwords: MIGRATION – whether Tribunal imposed upon the applicants an onus of proof in respect of the relevant claims – whether the Tribunal’s reasons as a whole reflected the requisite requirement that it be satisfied as to the correctness of the applicants’ claims – whether Tribunal’s reasons were illogical or irrational – no jurisdictional error established – application dismissed.

Legislation: Migration Regulations 1994 (Cth) sch 2 pt. 885, cls. 885.213
and 885.221

Cases cited: Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Egueyitsi v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 151 FCR 289
SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210
Warnakulasuriya v Minister for Immigration and Multicultural Affairs [1998] FCA 336

Division: Division 2 General Federal Law

Number of paragraphs: 24

Date of last submission/s: 1 December 2022

Date of hearing: 1 December 2022

Place: Brisbane

Counsel for the Applicants: Mr S Sharify

Solicitor for the Applicants: Carina Ford Immigration Lawyers

Counsel for the First Respondent: Mr J Barrington

Solicitor for the First Respondent: Clayton Utz

Second Respondent: Submitting appearance save as to costs
ORDERS

MLG 1451 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
HITESH KUMAR

First Applicant

SHIPRA SHIPRA

Second Applicant

SUMAN SUMAN

Third Applicant

AND:
MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:

JUDGE EGAN

DATE OF ORDER:

23 December 2022

THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The Amended Application for Review filed on 19 January 2022 be dismissed.
3.The First Applicant and Third Applicant pay the First Respondent’s costs of and incidental to the Amended Application for Review fixed in the amount of $7,053.00.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Egan
Introduction

The first applicant is a male citizen of the Republic of India who arrived in Australia in June 2006 on a valid Indian passport. The third applicant is married to the first applicant and together they are the parents of, and litigation guardians for, the second applicant. The success or otherwise of the second and third applicants’ visa applications is dependent upon the success or failure of the claims of the first applicant.
On 20 November 2011, the first applicant applied for a Skilled…

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.

Continue reading Kumar v Minister for Immigration, Citizenship and Multicultu...

Details

AGLC: Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1074
Case: [2022] FedCFamC2G 1074
Decision Date

CaseChat Overview and Summary

Kumar v Minister for Immigration, Citizenship and Multicultural Affairs involved a challenge by the applicants, including the first applicant who sought a Skilled – Independent (Class VB) (Subclass 885) Visa, against the decision of the Administrative Appeals Tribunal to deny their visa applications. The applicants argued that the Tribunal had improperly imposed an onus of proof on the first applicant and had acted illogically or irrationally in requiring independently verifiable evidence of his English language test results. The applicants further contended that the Tribunal had erred in finding that the first applicant had not sat any IELTS test in India between 2010 and 2012.

The court considered whether the Tribunal had imposed an onus of proof on the first applicant and whether the Tribunal’s requirement for independently verifiable evidence was illogical or irrational. The court found that the Tribunal had not imposed a strict onus of proof on the first applicant but had correctly reflected the requirement for an applicant to provide necessary evidence in support of their claims. The court held that the Tribunal's requirement for independently verifiable evidence was reasonable and necessary to ensure that the test results were achieved within the prescribed period. The court also found that the Tribunal's finding regarding the first applicant's IELTS test was neither illogical nor irrational, as it was based on the evidence provided by the British Council.

The court dismissed the Amended Application for Review, finding no jurisdictional error on the part of the Tribunal. The applicants failed to establish that the Tribunal had acted illogically or irrationally or had improperly imposed an onus of proof. The court ordered that the Amended Application for Review be dismissed and that the applicants pay the respondent's costs of and incidental to the application.

In summary, the Federal Circuit and Family Court of Australia (Division 2) dismissed the applicants' challenge against the Administrative Appeals Tribunal's decision, finding that the Tribunal had not erred in its reasoning or in imposing requirements for evidence. The applicants' arguments regarding the onus of proof and the requirement for independently verifiable evidence were rejected, and the Tribunal's findings were upheld. The applicants were ordered to pay the respondent's costs.

Orders