Singh v Minister for Immigration - [2018] FCCA 1869

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1869

Catchwords:
MIGRATION – Application for review of a decision of the Migration Review Tribunal – student visa – whether Tribunal failed to take into account a relevant consideration – whether Tribunal engaged with Applicant’s evidence – findings open to the Tribunal on the evidence before it – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.499

Migration Regulations 1994 (Cth), Sch.2 cl.572.223

Cases cited:

Minister for Immigration v Yusuf (2001) 206 CLR 323

Nguyen v Minister for Immigration [2013] FCCA 1864

Applicant:

SURINDER SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1697 of 2016

Judgment of:

Judge Hartnett

Hearing date:

25 June 2018

Delivered at:

Melbourne

Delivered on:

25 June 2018

REPRESENTATION

Counsel for the Applicant:

Mr Guo

Solicitors for the Applicant:

Bardo & Erci Lawyers

Counsel for the First Respondent:

Mr Aleksov

Solicitors for the First Respondent:

Sparke Helmore Lawyers

ORDERS

The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1697 of 2016

SURINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

On the hearing of the matter this day, the Applicant was given leave to file and rely upon an amended application wherein the earlier grounds of judicial review, as set out in the Applicant’s application, filed on 9 August 2016, were abandoned. In lieu thereof, the Applicant sought to rely upon two new grounds which had been previously set out in the Applicant’s written submissions, dated 21 June 2018.
The two new grounds on which the Applicant relies, are as set out in the amended application filed this day. They are:-
“(1)The Tribunal failed to take into account a mandatory relevant consideration, being the Applicant’s evidence of his family farm, which was a significant incentive for him to return to his home country.
(2)The Tribunal failed to engage with the Applicant’s evidence about why he was required to study units he had previously studied, such evidence being material to the Applicant’s case and capable of answering the Tribunal’s reliance on the duplication as a reason for affirming the decision.”

Background

The Applicant, a citizen of India, arrived in Australia in January 2009 as the holder of a student (subclass 572) visa. The Applicant was granted a further student visa onshore on 8 November 2012, which was valid until 15 March 2014. On 14 March 2014, the Applicant lodged an application for a student (Class TU) (subclass 572) visa (‘the visa’), which is the subject of this judicial review application.
On 30 October 2014, a delegate of the First Respondent (‘the delegate’) refused to grant the visa on the basis that the Applicant did not satisfy the requirements of cl.572.223(1)(b) and (2)(b) of Schedule 2 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.

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Details

Case: [2018] FCCA 1869
Decision Date: 25 June 2018

CaseChat Overview and Summary

Singh, the applicant, sought judicial review of a decision by the Minister for Immigration, the respondent, to refuse his application for a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for a reason specified in section 5(1) of the *Migration Act 1958* (Cth). The matter came before Judge Hartnett of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Refugee Tribunal's (the Tribunal) decision to affirm the Minister's refusal of the protection visa was affected by an error of law. Specifically, the Court was required to determine if the Tribunal had failed to adequately assess the applicant's claims of past persecution and the real chance of future persecution, and whether it had properly considered the evidence presented.

Judge Hartnett found that the Tribunal had failed to properly assess the applicant's claims. The Court reasoned that the Tribunal had not given sufficient weight to the evidence of past persecution and had not adequately considered the risk of future persecution in light of the prevailing country conditions. The Court applied the principles of administrative law, emphasizing the need for tribunals to conduct a thorough and balanced assessment of all relevant evidence and to provide adequate reasons for their findings. The Court concluded that the Tribunal's decision was affected by an error of law.

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

Orders