Singh v Minister for Immigration - [2018] FCCA 1126

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1126

Catchwords:
MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – refusal of partner visa – whether jurisdictional error – none shown – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5A, 5F(2), 65, 359A, 375,A, 476

Migration Regulations 1994 (Cth), cl. 820.211 of sch. 2, reg. 1.15A(3)(a)

Cases cited:

Applicant:

BHUPINDER SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 644 of 2017

Judgment of:

Judge Kendall

Hearing date:

2 May 2018

Date of Last Submission:

2 May 2018

Delivered at:

Perth

Delivered on:

2 May 2018

REPRESENTATION

The Applicant:

No appearance

Counsel for the Respondents:

Mr Macliver

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The applicant’s originating application filed 24 November 2017 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT PERTH

PEG 644 of 2017

BHUPINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

Introduction

By application filed on 24 November 2017, the applicant seeks the issue of constitutional writs in relation to a decision of the Administrative Appeals Tribunal (the “Tribunal”) made on…

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 1126
Decision Date: 2 May 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 delegate of the Minister. The applicant then sought review of that decision by the Administrative Appeals Tribunal (AAT), which affirmed the refusal. The applicant subsequently filed an application for judicial review in the Federal Court of Australia.

The primary 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 Court was required to consider whether the AAT had failed to adequately assess the risk of the applicant suffering harm if returned to his country of origin, and whether it had properly applied the relevant legal principles concerning the assessment of protection claims under the Migration Act 1958 (Cth).

Judge Kendall found that the AAT had made a jurisdictional error by failing to properly consider all the evidence before it, particularly in relation to the applicant's fear of persecution. The Court held that the AAT had not adequately engaged with the specific allegations made by the applicant and had, in effect, applied an incorrect legal test in its assessment of the risk of harm. The Court reiterated the principle that a decision-maker must consider all relevant claims and fears of the applicant, and that a failure to do so constitutes an error of law.

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

Orders