Minister for Immigration and Border Protection v Singh

The case of Minister for Immigration and Border Protection v Singh involved a visa applicant who sought a review by the Migration Review Tribunal of a decision by the Minister’s delegate to refuse his skilled visa on the basis that the delegate was not satisfied the visa applicant had competent English. The applicant had agreed with the Tribunal to wait until 31 December 2012 to receive the results of further tests for competent English before making its decision. However, the applicant notified the Tribunal on 1 January 2013 of the results of the tests but said he was going to apply for a re-mark of the test results. The Tribunal declined to grant additional time on 3 January 2013 and proceeded to make its decision on 11 January 2013. The applicant sought to appeal the Tribunal’s decision to the Federal Circuit Court.

The legal issues the court was required to decide were whether the Tribunal’s refusal to adjourn the decision to allow the applicant to apply for a re-mark of the test results was unreasonable and whether the Tribunal’s decision was in breach of procedural fairness. The primary judge of the Federal Circuit Court found that the Tribunal’s refusal to adjourn the decision was unreasonable and that the decision was in breach of procedural fairness. The primary judge emphasised three matters in reaching this conclusion. Firstly, the Tribunal had implicitly acknowledged that proceeding to a decision before the applicant had the results of the tests would have denied him a real chance to present his case. Secondly, the Tribunal expressed no view that the re-mark would be futile. Thirdly, the applicant’s request for a further adjournment conveyed to the Tribunal that he did not consider that he had presented his case. The primary judge found that the Tribunal’s decision that the applicant should not be able to submit test results corrected following a re-mark “lacked an evident and intelligible justification”.

The Minister sought to distinguish the facts in the present appeal from the facts on which the High Court’s decision in Li was based. The Minister submitted that, in seeking to apply Li in a given case, it is necessary to have regard to two factors in particular. Firstly, whether the purposes inherent in s 360 were adequately achieved by the process of review as a whole; and, secondly, whether there is a rational justification for refusing to allow further time. However, the Federal Circuit Court found that the Minister’s submissions were not sufficient to distinguish the present appeal from Li.

The final orders of the court were that the title of the appellant in the Notice of Appeal be amended from Minister for Immigration, Multicultural Affairs and Citizenship to Minister for Immigration and Border Protection. The appeal was dismissed, and the appellant was ordered to pay the first respondent’s costs of and incidental to the appeal.