KAPOOR v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAPOOR v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 3167

Catchwords:
MIGRATION – Judicial review of decision of Migration Review Tribunal.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03C

Migration Act 1958 (Cth)

Applicant:

LALIT KAPOOR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 302 of 2013

Judgment of:

Judge Simpson

Hearing date:

26 May 2014

Date of Last Submission:

26 May 2014

Delivered at:

Adelaide

Delivered on:

26 May 2014

REPRESENTATION

The Applicant:

No appearance

Solicitors for the Respondents:

Mr P d'Assumpcao for the Australian Government Solicitors

ORDERS

Pursuant to r.13.03C of the Federal Circuit Court Rules 2001 (Cth) the application be dismissed.
The Applicant pay the first respondent’s costs fixed in the amount of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 302 of 2013

LALIT KAPOOR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Reasons settled from transcript)

I have before me an application for judicial review filed on 21 October 2013.
On 20 May, the Applicant filed an affidavit annexing a medical certificate which said that he – the Applicant, that is – had lower back pain and right leg pain and that he was unfit for work from 19 May 2014 to 23 May 2014. It also said that he could resume work on 24 May 2014.
As a result of that certificate, the Court contacted the Applicant on 21 May to arrange a suitable time for the Applicant to be able to appear and to put whatever submissions he wished to in relation to this matter.
He was contacted by telephone to the courtroom. I indicated to him that I was considering listing the matter for 3.00pm on 26 May 2014, but only if it was convenient for the Applicant to appear. The Applicant indicated that that would be a suitable time and that he would be able to appear on that day.
The Applicant’s name has now been called three times and he has not appeared. The time is now 7 minutes past 3 o’clock – well past the time that he should have been here.
There has been no contact with the Court by the Applicant to advise that he would be unable to appear. In the circumstances, I can only assume that the Applicant has decided not to proceed with the application.
I propose to dismiss the application with costs.
I make the orders to be found at the beginning of these reasons.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate:

Date: 7 May 2015

CaseChat Overview and Summary

In *Kapoor v Minister for Immigration*, the applicant, Mr Kapoor, sought judicial review of a decision by the Minister for Immigration to refuse his application for a Protection visa. The dispute centred on whether Mr Kapoor had established a well-founded fear of persecution for reasons of his membership of a particular social group, specifically, his family.

The primary legal issue before the Federal Court was whether the Minister's delegate had erred in law by failing to properly consider the evidence relating to the applicant's alleged membership of a particular social group, namely his family, and whether this membership placed him at real risk of persecution. The court was required to determine if the delegate had applied the correct legal test for assessing membership of a particular social group under the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth), and if the delegate's findings of fact were reasonably open on the evidence.

Judge Simpson found that the delegate had made an error of law by failing to adequately assess whether the applicant's family constituted a particular social group for the purposes of the *Migration Act*. The delegate had focused on the individual characteristics of the applicant rather than considering the group as a whole and its nexus to the alleged persecution. The court applied the principles established in cases concerning the definition of "particular social group," emphasising the need for a cohesive group with a common characteristic that is immutable or fundamental to identity, and that such a group must be recognised as such by the persecutor. The delegate's failure to properly engage with this legal framework meant that the decision was vitiated by jurisdictional error.

The court ordered that the decision of the Minister's delegate be set aside and remitted to the Minister for redetermination according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established