Singh v Minister for Immigration - [2018] FCCA 369

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 369

Catchwords:

MIGRATION – Migration Act 1958 (Cth) – application for judicial review of Administrative Appeals Tribunal’s decision affirming decision of Delegate not to grant a (Subclass 820) Temporary Partner visa and (Subclass 801) Partner visa – application for both visas out of time as not complying with Condition 3001 – no “compelling reasons” for not applying Condition 3001 – No meaningful grounds of jurisdictional error asserted by applicant – otherwise no discernible jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), s.65
Migration Regulations 1994 (Cth)

Cases cited:

Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285
MZYPZ v Minister for Immigration (2012) FCA 478
SZFNK v Minister for Immigration and Multicultural Affairs [2006] FCA 1601
SZNXA v Minister for Immigration and Citizenship [2010] FCA 775

Applicant:

MANDEEP SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1454 of 2016

Judgment of:

Judge Dowdy

Hearing date:

8 March 2017

Date reserved:

30 March 2017

Delivered at:

Sydney

Delivered on:

22 February 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents:

Mr T. Liu

Solicitors for the Respondents:

Clayton Utz

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 8 June 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1454 of 2016

MANDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant is a male citizen of India aged 28 years, having been born on 7 March 1989.
By Application filed in this Court on 8 June 2016 he seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 12 May 2016 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 12 December 2014 refusing to grant the Applicant a Partner (Temporary) (Class UK) (Subclass 820) visa (Temporary Partner visa) under s.65 of the Migration Act 1958 (Cth) (the Act).

Background

The Applicant arrived in Australia on 21 July 2013 on a Visitor (Subclass 600) visa (Visitor visa), which ceased on 21 October 2013. This was the last substantive visa that was granted to the Applicant.
The Applicant applied for a Vocational Education and Training Sector (Subclass 572) visa on 18 October 2013. However this application was refused on 27 November 2013. The Migration Review Tribunal affirmed the decision to refuse this visa application on 26 February 2014. An application for review of that decision was made to the Federal Court of Australia but was withdrawn by the Applicant on 17 November 2014.
On 22 September 2014 the Applicant applied for the Temporary Partner visa together with a Partner (Residence) (Class BS) (Subclass…

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 369
Decision Date: 22 February 2018

CaseChat Overview and Summary

Singh applied to the Federal Court of Australia for judicial review of a decision made by the Administrative Appeals Tribunal. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration not to grant Mr. Singh a Subclass 820 Temporary Partner visa and a Subclass 801 Partner visa. The core of the dispute concerned Mr. Singh's failure to lodge his visa applications within the prescribed timeframe, thereby not complying with Condition 3001 of the Migration Regulations 1994 (Cth).

The primary legal issue before Dowdy J was whether the Tribunal had erred in law in its assessment of Mr. Singh's applications. Specifically, the court was required to determine if there were "compelling reasons" for Mr. Singh's non-compliance with Condition 3001, and if the Tribunal's finding that no such reasons existed was legally sound. The applicant also sought to establish that the Tribunal had committed jurisdictional error in its decision-making process.

Dowdy J found that the applicant had not advanced any meaningful grounds to assert jurisdictional error. The court reviewed the Tribunal's decision and concluded that it had correctly applied the relevant legal principles, including the assessment of "compelling reasons" for waiving Condition 3001. The Tribunal's finding that no such compelling reasons were present was not demonstrably flawed in law. Consequently, the application for judicial review was dismissed.

Orders