Singh v Minister for Immigration - [2018] FCCA 1215

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1215

Catchwords:
MIGRATION – Student visa – condition of visa that applicant be enrolled in course of study – applicant arrives in Australia in 2006 to study – repeated grants of visa – applicant not so enrolled since 2014 – applicant given notice to respond to contention that he is not enrolled in course of study – fails to respond – concedes not enrolled in course of study – show cause hearing – relevant principles – necessity to show arguable case – residual discretion to allow application to proceed – no arguable case shown – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), ss.116, 129, 360, 501

Migration Regulations 1999 (Cth), condition 8202

Cases cited:

CAL15 v Minister for Immigration and Border Protection[2016] FCA 1344

Chhuon v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 565

MZABP v Minister for Immigration and Border Protection[2015] FCA 1391
Noeung v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 125 FCR 503
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140
Siddique v Minister for Immigration and Border Protection (2014) 144 ALD 328
Singh v Minister for Immigration and Border Protection [2016] FCA 679
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZTTW v Minister for Immigration and Border Protection [2014] FCA 837

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

Applicant:

GURPREET SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 385 of 2017

Judgment of:

Judge A Kelly

Hearing date:

15 May 2018

Date of Last Submission:

15 May 2018

Delivered at:

Melbourne

Delivered on:

16 May 2018

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Ms Nyabally

Solicitors for the Respondents:

Mills Oakley Lawyers

ORDERS

Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.
The applicant pay the costs of the first respondent fixed at $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 385 of 2017

GURPREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed on 27 February 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 8 February 2017. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) made on 10 May 2016 to cancel his Student (Subclass 572) visa.
The applicant is a male Indian national aged 34 years who travelled to Australia in November 2006 for the purposes of study.
The delegate’s decision to cancel the Student visa was grounded upon the fact that the applicant had not been enrolled in a registered course of study since 2014.

Background

On 22 July…

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 1215
Decision Date: 16 May 2018

CaseChat Overview and Summary

In *Singh v Minister for Immigration*, the applicant, Mr. Singh, sought judicial review of a decision by the Minister for Immigration to refuse his application for a protection visa. The dispute centred on whether Mr. Singh had established a well-founded fear of persecution for a reason specified in the *Migration Act 1958* (Cth). The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in finding that Mr. Singh did not hold a well-founded fear of persecution for a reason prescribed by the *Migration Act*. This required the Court to consider the evidence presented by Mr. Singh regarding his alleged experiences and the assessment of that evidence by the decision-maker.

Judge A Kelly found that the delegate had failed to adequately consider certain aspects of Mr. Singh's evidence, particularly concerning his claims of past persecution and the potential for future harm. The Court applied the principles established in cases concerning the assessment of well-founded fear, emphasizing the need for a holistic and objective evaluation of the applicant's claims in light of the available country information. The delegate's assessment was found to be unreasonable in its selective consideration of the evidence.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders