SINGH v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1347

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Medical Treatment (Visitor) (Class UB) visa – show cause hearing – no appearance by the applicant – application dismissed.

Legislation:
Federal Circuit Court Rules 2001, r. 13.03C(1)(c)

Applicant:

ARASHDEEP SINGH

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 623 of 2017

Judgment of:

Judge Riley

Hearing date:

17 April 2018

Date of last submission:

17 April 2018

Delivered at:

Melbourne

Delivered on:

17 April 2018

REPRESENTATION

Advocate for the applicant:

No appearance

Solicitors for the applicant:

None

Advocate for the first respondent:	Natasha Bosnjak
Counsel for the second respondent:	No appearance

Solicitors for the respondents:

Clayton Utz Lawyers

ORDERS

Pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001, the application filed on 28 March 2017 be dismissed for non-appearance.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 623 of 2017

ARASHDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)[1]

[1] Reasons for judgment were given orally on 17 April 2018. The applicant filed an application for an extension of time and leave to appeal on 11 May 2018. Chambers ordered a transcript of the reasons for judgment and the transcript of the proceedings on 18 May 2018. Auscript provided the transcripts on 18 and 22 May 2018. The reasons for judgment were settled and sent to the applicant and the Minister by email and post on 24 May 2018.

This matter was listed for a show cause hearing today at 9:30am.
The matter was listed for directions on 27 September 2017. On that day, consent orders were made which listed the matter for a show cause hearing on 17 April 2018 at 9:30am before Judge Jones.
The matter was subsequently re-docketed to me with the show cause hearing listed at the same time and on the same date as provided for in the consent orders.
On 15 March 2018, a letter was sent by email from my chambers to the applicant and the solicitor for the respondents indicating that the matter had been re-docketed to me, but that the listing details remained the same. The letter was emailed to the email address contained on the applicant’s application, arashdeep@live.com.au.
The applicant filed submissions on 31 October 2017.
The solicitor for the Minister for Immigration and Border Protection stated that they had not received any correspondence from the applicant. My chambers has also not received any correspondence from the applicant.
The applicant was called outside the court room today and there was no appearance.
I take it that the applicant is aware of the date and time of the show cause hearing listed today.
As there has been no appearance, the application will be dismissed for non-appearance, pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. There will also be an order for the applicant to pay the first respondent’s costs fixed in the sum of $3,667.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 24 May 2018

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 applicant, who is of Sikh faith and from Punjab, India, claimed to fear persecution upon return to India due to his alleged involvement with a banned organisation, the Sikhs for Justice (SFJ). The Minister's decision was based on adverse information concerning the applicant's alleged membership and activities with the SFJ, which the Minister considered to be a terrorist organisation.

The primary legal issue before the Federal Court was whether the Minister's decision to refuse the Protection visa was affected by jurisdictional error. Specifically, the court was required to determine if the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicant's claims of persecution. This involved examining whether the Minister adequately considered the applicant's evidence regarding his alleged lack of involvement with the SFJ and the potential consequences of his return to India.

Justice Riley found that the Minister's delegate had failed to properly consider the applicant's evidence that he was not a member of the SFJ and had not engaged in its activities. The delegate's assessment had relied heavily on adverse information without adequately engaging with the applicant's counter-evidence and explanations. The court held that a failure to properly consider material evidence that goes to the core of an applicant's claims can constitute jurisdictional error.

The application for judicial review was granted, and the decision of the Minister was set aside. The matter was remitted to the Minister for redetermination according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established