Singh v Minister for Immigration - [2018] FCCA 1230

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1230

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – partner (temporary) (Class UK) visa – Applicant filed notice of discontinuance – Applicant seeks reinstatement of application – where Applicant claims he received bad advice – no proper basis for exercise of discretion to reinstate the application – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.01, 44.15.

Migration Act 1958 (Cth), ss.360, 362B.
Migration Regulations 1994 (Cth), Schedule 2, cl. 820.211, Schedule 3, criteria 3001, 3003, 3004

Cases cited:

CHD16 v Minister for Immigration [2017] FCCA 1679

Chen v Monash University [2016] 244 FCR 424

COB16 & Ors v Minister for Immigration [2018] FCCA 152
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189

Applicant:

JATINDER SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 955 of 2016

Judgment of:

Judge Hartnett

Hearing date:

16 April 2018

Delivered at:

Melbourne

Delivered on:

16 April 2018

REPRESENTATION

The Applicant:

In Person

Counsel for the First Respondent:

Mr Rebikoff

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The application in a case filed 14 December 2017 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $2280.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 955 of 2016

JATINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

On 9 May 2016 the Applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 20 April 2016. By that decision the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (‘the delegate’) to refuse the Applicant’s partner (temporary) (Class UK) (subclass 820) visa (‘the visa’).
The grounds of application were as follows:-
“1. I Jatinder Singh is 26-year-old citizen of India. I applied for the visa on 5 February 2015 on the basis of his relationship with his sponsor, Ms. Jamie-Lee Whelan, a 27-year-old Australian citizen. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
2. The delegate refused to grant the visa on the basis that the I did not satisfy cl.820.211(2)(d) because the applicant did not meet criterion 3001 and the delegate found that there were no compelling reasons to not apply the relevant Schedule 3 criteria.
3. I was unable to attend hearing due to sickness and have provided an evidence of medical certificate confirming that I was unable to attend hearing. On 12^th April I was given adjournment on this matter and I was still unable to further scheduled hearing.
4. Decision…

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.

Keep reading for free

Create a free CaseChat account to read Singh v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 1230
Decision Date: 16 April 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