Singh v Minister for Home Affairs

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Home Affairs [2019] FCA 905

Appeal from:

Application for review: Singh and Minister for Home Affairs (Migration) [2019] AATA 73

File number:

VID 194 of 2019

Judge:

MIDDLETON J

Date of judgment:

6 June 2019

Legislation:

Migration Act 1958 (Cth) ss 476A, 499

Cases cited:

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112

Date of hearing:

6 June 2019

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

No Catchwords

Number of paragraphs:

19

Counsel for the Applicant:

Mr M Guo

Counsel for the First Respondent:

Mr A Yuile

Solicitor for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice

ORDERS

VID 194 of 2019

BETWEEN:

GALJINDER SINGH

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

MIDDLETON J

DATE OF ORDER:

6 June 2019

THE COURT ORDERS THAT:

1.        The decision of the Second Respondent dated 30 January 2019 be set aside.

2.        The matter be remitted to the Second Respondent for determination according to law.

3.        The First Respondent pay the Applicant’s costs of the proceeding.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MIDDLETON J:

1. The application before me – which seeks to invoke this Court’s original jurisdiction pursuant to s 476A of the Migration Act 1958 (Cth) (the ‘Act’) – concerns a decision of the Second Respondent (the ‘Tribunal’) which affirmed a decision of a delegate of the First Respondent (the ‘Minister’) to cancel the Applicant’s Subclass 885 Skilled – Independent Visa under s 501(2) of the Act on character grounds. The Minister had determined that the Applicant had not passed the ‘character test’ because of two criminal convictions recorded in 2014: (1) use of a carriage service to groom a person under 16 years of age for sexual activity; and (2) wilfully committing an indecent act with a child under the age of 16.

2. Following an application for merits review, the Tribunal affirmed the Minister’s decision to exercise the discretion under s 501(2) to cancel the Applicant’s visa.

3. The crux of the application before this Court is whether the Tribunal erred in applying particular aspects of Ministerial Direction 65 (the ‘Direction’), which at the time was the relevant direction the Tribunal was required to apply pursuant to s 499 of the Act. I note that this Direction has since been replaced and is no longer in force.

4. The Applicant’s amended originating application for review of a migration decision dated 23 May 2019 identifies two grounds of application:

   1.   The Administrative Appeals Tribunal (the Tribunal) erred by failing to take into account the mandatory consideration of the Applicant's then-unborn child.

   Particulars

   Paragraph 10(1) of Ministerial Direction No 65, issued…