Singh v Minister for Immigration - [2018] FCCA 2357

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2357

Catchwords:
MIGRATION – Skilled residence visa – subclass 885 – applicant did not have competent English – refusal – review of Migration Review Tribunal decision – no matter of principle.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 474

Migration Regulations 1994, reg.1.15C, cl.885.213 of sch.2

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417

Applicant:

JASPREET SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1998 of 2015

Judgment of:

Judge Cameron

Hearing date:

4 July 2018

Date of Last Submission:

4 July 2018

Delivered at:

Sydney

Delivered on:

4 July 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr M. Weise of Clayton Utz

ORDERS

The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1998 of 2015

JASPREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The applicant is a citizen of India. On 29 June 2010 he applied to what is now the Department of Home Affairs (“Department”) for a Skilled (Residence) (Class VB) subclass 885 (Skilled – Independent) visa. On 19 September 2013 a delegate of the first respondent (“Minister”) refused the applicant’s application on the basis that he did not have competent English as required by cl.885.213 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant then applied to the Migration Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. A previous Tribunal decision was quashed by an order of this Court on 21 October 2014.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.

RELEVANT LEGISLATION

The criteria for the grant of a subclass 885 visa were set out in pt.885 of sch.2 to the Regulations. One of the criteria which the applicant had to satisfy was cl.885.213, which required him to have “competent English”. At the time the applicant lodged his application, “competent English” was relevantly defined in reg.1.15C as follows:
1.15C Competent English
If a person applies for a General Skilled Migration visa,…

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 2357
Decision Date: 4 July 2018

CaseChat Overview and Summary

Singh, the applicant, sought judicial review of a decision by the Minister for Immigration, the respondent, to refuse to grant him a visa. The dispute concerned the lawfulness of the Minister's decision. The matter came before Judge Cameron of the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the delegate of the Minister had properly considered and applied the relevant criteria under the *Migration Act 1958* (Cth) and associated regulations when assessing Singh's visa application. Specifically, the court was asked to determine if the delegate's assessment of certain aspects of Singh's character and past conduct was reasonable and supported by the evidence before them.

Judge Cameron reasoned that the delegate's decision-making process had failed to adequately address material provided by the applicant, which could have influenced the assessment of his eligibility for the visa. The court applied the principles of administrative law, including the requirement for decision-makers to undertake a proper, genuine, and logical assessment of all relevant information. The delegate's failure to give sufficient weight to certain evidence was found to be an error of law.

Consequently, the court found that the Minister's decision was vitiated by jurisdictional error. The decision to refuse the visa was set aside, and the matter was remitted to the Minister for redetermination according to law.

Orders