Singh v Minister for Immigration - [2018] FCCA 2063

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2063

Catchwords:

MIGRATION – Migration Act 1958 (Cth) – application for a partner visa – application in Court for judicial review of decision of Administrative Appeals Tribunal affirming decision of Delegate of the Minister for Immigration not to grant a partner visa because relationship between applicant and sponsoring partner not genuine and continuing at time of decision – no appearance by Applicant before scheduled Tribunal hearing – Applicant applied for reinstatement on the basis of inadequate medical certificate – Administrative Appeals Tribunal refuses to reinstate application for review – no jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 362B, 375A

Migration Regulations 1994 (Cth)

Cases cited:

AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103

BXD17 v Minister for Immigration and Border Protection [2018] FCA 765
BZV15 v Minister for Immigration and Border Protection [2017] FCA 1522
Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98
Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640
Minister for Immigration & Border Protection v Singh (2016) 244 FCR 305
MZAHI v Minister for Immigration and Border Protection [2016] FCA 129
Ponugoti v Minister for Immigration and Border Protection (2015) 144 ALD 365

Applicant:

MANJINDER SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 872 of 2016

Judgment of:

Judge Dowdy

Hearing date:

20 September 2016

Date of Last Submission:

22 September 2017

Delivered at:

Sydney

Delivered on:

1 August 2018

REPRESENTATION

The Applicant appeared
in person.

Counsel for the First Respondent:

Mr J. Pinder

Solicitors for the First Respondent:

Minter Ellison

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 12 April 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 872 of 2016

MANJINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant is a male citizen of India aged 32 years, having been born on 8 June 1986.
By Application filed in this Court on 12 April 2016 the Applicant seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 1 April 2016 (made under s.362B(1C)(b) of the Migration Act 1958 (Cth) (the Act)) to confirm its earlier decision of 21 March 2016 (made under s.362B(1A)(b)) to dismiss on that date his application for review of the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 19 February 2015 refusing to grant him a Partner (Residence) (Class BS) (Subclass 801) visa (permanent Partner visa) because of his non-appearance at the Tribunal hearing scheduled for 21 March 2016.

Background

The Applicant arrived in Australia on a Student visa on 18 October 2007.
On 12 September 2011 the…

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: [2018] FCCA 2063
Decision Date: 1 August 2018

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (AAT). The applicant, Mr Singh, sought a partner visa, but his application was refused by a delegate of the Minister for Immigration on the grounds that his relationship with his sponsoring partner was not genuine and continuing at the time of the decision. The AAT affirmed this decision.

The primary legal issue before the Court was whether the AAT had committed a jurisdictional error in refusing to reinstate Mr Singh's application for review. Mr Singh had failed to appear at the scheduled Tribunal hearing and subsequently applied for reinstatement, relying on an inadequate medical certificate. The AAT refused this application.

Dowdy J found that the AAT's refusal to reinstate the application did not constitute a jurisdictional error. The Court reasoned that the AAT had acted within its powers in considering the application for reinstatement and in assessing the adequacy of the medical certificate provided. The AAT was entitled to conclude that the certificate did not establish a sufficient basis for reinstatement, particularly in the absence of other compelling evidence or explanation for Mr Singh's non-appearance.

Consequently, the application for judicial review was dismissed.

Orders