Singh v MIBP - [2015] FCCA 1533

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1533

Catchwords:
MIGRATION – Skilled Independent (Class VB, subclass 885) visa – whether applicant had competent English for the purposes of cl.885.213 of the Migration Regulations 1994 (Cth) – where applicant’s last IELTS was undertaken more than 2 years prior to application for visa – where cl.885.213 not met – no jurisdictional error – application refused.

Legislation:

Migration Act 1958 (Cth), ss.474(2), 476

Migration Regulations 1994 (Cth), cll.885.213, 885.221, reg.1.15C, 1.15C(a)

Govind v Minister for Immigration & Border Protection [2014] FCA 864 Sandhu v Minister for Immigration, Multiculturalism & Citizenship [2014] FCA 486
Singh v Minister for Immigration & Border Protection [2014] FCA 185

Applicant:

GAGANDEEP SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

BRG 947 of 2014

Judgment of:

Judge Jarrett

Hearing date:

3 March 2015

Date of Last Submission:

3 March 2015

Delivered at:

Brisbane

Delivered on:

5 June 2015

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent:

Mr McGlade

Solicitors for the First Respondent:

Sparke Helmore Lawyers

The Second Respondent entered a submitting appearance

ORDERS

The amended application filed on 23 January, 2015 is dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 947 of 2014

GAGANDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of a migration review tribunal which affirmed a decision of a delegate of the first respondent to refuse the applicant’s application for a Skilled Independent (Class VB, subclass 885) visa.
The first respondent opposes the application. The second respondent enters a submitting appearance.
On 23 January, 2015 the applicant filed an amended application. At the commencement of the hearing before me, he handed up written submissions in support of his amended application. The first respondent had delivered, in accordance with the directions previously made by the Court, written submissions in opposition to the application.

Background

The applicant is a citizen of India. He first arrived in Australia in July, 2007 on a Student (Subclass 573) visa. On 3 August, 2009 he applied for a Subclass 485 (Skilled Graduate) visa which was granted on 16 April, 2010.
On 7 October, 2011 he applied for a Skilled Independent (Class VB subclass 885) visa. That is the visa application that has led to the present application.
On 21 February, 2014 a delegate of the first respondent considered the applicant’s visa application and rejected it. The delegate determined that the applicant failed to satisfy a required criterion so that the visa could be granted. To obtain a subclass 885 visa, the applicant needed to satisfy the visa criteria that was set out in clause 885 of Schedule 2 of the Migration Regulations1994 (Cth). Two of the criteria which needed…

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: [2015] FCCA 1533
Decision Date: 5 June 2015

CaseChat Overview and Summary

Singh (the applicant) sought judicial review of a decision made by the Minister for Immigration and Border Protection (the respondent) to refuse to grant him a protection visa. The applicant, who is of Sikh faith and from Punjab, India, claimed to fear persecution by the Indian authorities and by the Khalistan Liberation Force (KLF) due to his alleged involvement with the KLF. The Administrative Appeals Tribunal (AAT) had affirmed the Minister's decision to refuse the visa. The applicant then brought proceedings in the Federal Court of Australia seeking to set aside the AAT's decision.

The primary legal issue before the Court was whether the AAT had erred in law by failing to adequately consider the applicant's claims of persecution by the Indian authorities and by the KLF. Specifically, the applicant argued that the AAT had not properly assessed the credibility of his claims and had not given sufficient weight to the evidence he presented, including his own testimony and expert reports concerning the human rights situation in Punjab. The Court was required to determine if the AAT's findings were supported by the evidence and if the Tribunal had applied the correct legal tests in assessing the risk of persecution.

Judge Jarrett found that the AAT had failed to adequately address the applicant's claims regarding persecution by the Indian authorities. The Tribunal's reasons did not demonstrate a proper consideration of the evidence relating to the applicant's alleged involvement with the KLF and the potential consequences of such involvement with law enforcement agencies in India. The Court held that the AAT had not properly engaged with the specific allegations made by the applicant and had therefore not discharged its statutory duty to assess the real chance of him suffering harm. The legal principle applied was that a tribunal must provide reasons that are sufficient to demonstrate that it has considered all relevant evidence and arguments.

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