Singh v Minister for Immigration - [2018] FCCA 1454

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1454

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of partner visa – applicant found not to be the genuine spouse of his sponsor – certificates issued in relation to information in a home visit report and two “dob in” letters – certain information disclosed under s.359A of the Migration Act – whether the Tribunal erred in refusing to allow more time to respond to an invitation to comment considered – no jurisdictional error.

Legislation:

Explanatory Memorandum to the Migration Legislation Amendment Bill (No 1) 2014
Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.5F, 359, 359A, 359B, 362A, 375A, 379A, 379C, 379G, 438
Migration Regulations 1994 (Cth)

Cases cited:

Applicant WAEE v Minister for Immigration (2003) 75 ALD 630; [2003] FCAFC 184
CEF15 & Anor v Minister for Immigration & Anor [2018] FCCA 656
He v Minister for Immigration [2017] FCAFC 206
Minister for Immigration v CQZ15 [2017] FCAFC 194

Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration v Singh (2016) 244 FCR 305; [2016] FCAFC 183

Minister for Immigration v SZGUR (2011) 241 CLR 594; [2011] HCA 1

MZAFZ v Minister for Immigration (2016) 243 FCR 1; [2016] FCA 1081

Tran v Minister for Immigration [2004] FCAFC 297

Applicant:

SANJAY SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2191 of 2017

Judgment of:

Judge Driver

Hearing date:

5 June 2018

Delivered at:

Sydney

Delivered on:

21 June 2018

REPRESENTATION

Counsel for the Applicant:

Mr D Godwin

Solicitors for the Respondents:

Mr L Dennis of Minter Ellison

ORDERS

The application filed on 12 July 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2191 of 2017

SANJAY SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant, Mr Singh, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 20 June 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant a partner visa.
The following statement of background facts is derived from the submissions of the parties.
Mr Singh is a citizen of Fiji. On 4 August 2008, he made a combined application for a partner (Provisional) (Class UF) (Subclass 309) visa (temporary partner visa) and a permanent partner visa.[1] On 9 May 2009, Mr Singh was granted a temporary partner visa.[2]
[1] court book (CB) 1–22
[2] CB 111–114
On 20 January 2012, the delegate refused to grant Mr Singh a permanent partner visa on the basis that he did not satisfy clause 100.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[3]
[3] CB 248–266
That decision was affirmed by the Migration Review Tribunal (MRT) on 6 March 2014.[4]
[4] CB 322–332
On 18 March 2015, a judge of this…

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 1454
Decision Date: 21 June 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 applicant had applied for a Protection visa, which was refused by the primary decision-maker. This refusal was affirmed on review by the Administrative Appeals Tribunal (AAT). The applicant then sought to challenge the AAT's decision in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the AAT had erred in law in its assessment of the applicant's claims for protection. Specifically, the applicant argued that the AAT had failed to adequately consider or properly assess certain aspects of his evidence relating to his fear of persecution in his country of origin. The applicant contended that this failure amounted to an error of law, rendering the AAT's decision invalid.

Judge Driver found that the AAT had, in fact, considered all the evidence before it and had provided adequate reasons for its findings. The Court applied the principles of administrative law, including the requirement for tribunals to provide sufficient reasons for their decisions and to engage with the evidence presented. The Court determined that the AAT's assessment of the applicant's claims, while perhaps not to the applicant's satisfaction, did not disclose an error of law.

The application for judicial review was dismissed.

Orders