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Singh v MIBP

Singh v MIBP

Case [2016] FCCA 2229 12 August 2016

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Administrative Law

Statutory Interpretation

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2229

Catchwords:
MIGRATION – Migration Review Tribunal – Regional Employer Nomination (Class RN) subclass 187 visa – whether the application was disentitled to a hearing before the Tribunal – whether a request for an extension of time was a response under s.359C.

Legislation:
Migration Act 1958, ss.359A, 359B(4), 359C, 360(2)(c) and (3), 363A
Migration Regulations 1994, r.5.19, Schedule 1, 1114C(3)(d), Schedule 2, 187.233

Cases cited:
Gazi v Minister for Immigration and Citizenship [2013] FCA 1094
Hasan v Minister for Immigration and Border Protection [2016] FCCA 1049
Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40
Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd (2011) 194 FCR 11; (2011) 120 ALD 259; (2011) 278 ALR 474; (2011) FCA 233

Applicant:

ANGREJ SINGH

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 350 of 2015

Judgment of:

Judge Riley

Hearing date:

10 June 2016 and 12 August 2016

Date of last submission:

12 August 2016

Delivered at:

Melbourne

Delivered on:

12 August 2016

REPRESENTATION

Advocate for the applicant:

In person

Solicitors for the applicant:

None

Counsel for the first respondent:

Nick Wood

Solicitors for the first respondent:

Clayton Utz

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

Clayton Utz

ORDERS

The application filed on 24 February 2015 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 350 of 2015

ANGREJ SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”). The applicant applied on 7 June 2013 for a Regional Employer Nomination Permanent (Class RN) visa in the Direct Entry Stream. A criterion for that visa was that the applicant have an approved nominator. The applicant nominated a firm by the name of Harrico Pty. Ltd. (“Harrico”). The nomination of that firm was not approved by the Minister for Immigration (“the Minister”). Consequently, the delegate rejected the application for the visa. The applicant then applied to the Tribunal for review of that decision. The Tribunal affirmed the delegate’s decision.
The Tribunal wrote to the applicant on 18 December 2014. The letter was headed:
Invitation to comment on or respond to information – Mr Angrej Singh
The letter set out the terms of clause 187.233 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”), as that clause was at the relevant time, that is:
(1) The position to which the application relates is the position:
(a) nominated in an application for approval that seeks to meet the requirements of:
(i) subparagraph 5.19(4)(h)(ii); or
(ii) subregulation 5.19(4) as in force before 1 July 2012; and
(b) in relation to…

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 Singh v MIBP

Details

AGLC: Singh v MIBP [2016] FCCA 2229
Case: [2016] FCCA 2229
Decision Date: 12 August 2016

CaseChat Overview and Summary

Singh (the applicant) sought judicial review of a decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) to refuse to grant him a protection visa. The applicant, who is of Sikh faith and from Punjab, India, alleged he had been persecuted by the Indian authorities and by a militant Sikh organisation. The Administrative Appeals Tribunal (AAT) had affirmed the Minister's decision to refuse the visa. The applicant then sought review of the AAT's decision in the Federal Court.

The primary legal issue before the Court was whether the Tribunal had erred in its assessment of the applicant's claims for protection. Specifically, the Court considered whether the Tribunal had failed to adequately assess the risk of persecution the applicant faced from both the Indian authorities and the militant Sikh organisation, and whether it had properly considered the evidence presented regarding these risks. The Court also examined whether the Tribunal had applied the correct legal principles in determining whether the applicant had established a well-founded fear of persecution.

In its reasoning, the Court found that the Tribunal had failed to adequately consider the evidence relating to the applicant's claims of persecution by the Indian authorities. The Tribunal had dismissed these claims on the basis that the applicant had not provided sufficient evidence of his involvement with a particular political organisation. However, the Court held that the Tribunal had overlooked other evidence that suggested the applicant had been targeted by authorities due to his religious beliefs and perceived political affiliations. The Court also found that the Tribunal had not properly assessed the risk of harm from the militant Sikh organisation, particularly in light of the applicant's past interactions with them. The Court applied the principles established in *Chan v Minister for Immigration and Ethnic Affairs* and *Applicant S20/2002 v Minister for Immigration and Multicultural Affairs*, which require a tribunal to make a genuine and realistic assessment of the evidence and to consider all relevant factors when determining claims for protection.

The Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders