Singh v Minister for Immigration - [2018] FCCA 193

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 193

Catchwords:
MIGRATION – Skilled visa application – where migration agent engaged in fraud in lodging visa application – whether applicant should bear responsibility for agent’s fraud – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.98

Cases cited:

Singh v Minister for Immigration and Border Protection [2016] FCAFC 141

Gill v Minister for Immigration and Border Protection [2016] FCAFC 142
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
Dollars & Sense Finance Ltd v Rerekohu Nathan [2008] NZSC 20
SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393
NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199
Industrial Equity Ltd v G & C Consolidated Pty Ltd [1974] 2 NSWLR 456

Applicant:

JAGDIP SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2138 of 2014

Judgment of:

Judge Riethmuller

Hearing dates:

22 September 2017

12 October 2017

1 November 2017

Date of Last Submission:

19 December 2017

Delivered at:

Melbourne

Delivered on:

31 January 2018

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent:

Mr Knowles

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2138 of 2014

JAGDIP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of India. On 12 April 2011, S & S Migration, acting as his migration agents, lodged an application on his behalf for a Skilled (Provisional) (Class VC) visa. The completed visa application form stated that the applicant had a skills assessment from the Trades Recognition Australia (“TRA”) authority, with a particular reference number (xx302).
The application was considered by the Department, which resulted in correspondence to the applicant on 17 February 2011 inviting him to comment upon adverse information, namely that the skills assessment xx302 was not a reference number for which the TRA had any record, and therefore it appeared to be a bogus document. The applicant did not respond to this correspondence. As a result, on 24 May 2012, a delegate of the Minister refused to grant the applicant a skilled visa and rejected the visa application.
On 7 June 2012, the applicant applied to the Tribunal for review of the delegate’s decision. On 24 July 2014, the applicant’s then representative, Career Education Consultancy Australia, replied to an invitation by the Tribunal to provide further information, setting out that the applicant had been the victim of a fraud by S & S Migration, and had no knowledge of the visa application nor the bogus documents which purported to support it.
On 26 September 2014, the Tribunal conducted a hearing in which the applicant was represented and gave evidence. In October of 2014, the Tribunal handed down…

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 193
Decision Date: 31 January 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 protection visa. The applicant, who is of Sikh faith and from Punjab, India, claimed to fear persecution upon return to India due to his religious beliefs and activities. The Minister had refused the protection visa application on the basis that the applicant's claims were not substantiated and that he did not hold a well-founded fear of persecution. The matter came before Judge Riethmuller in the Federal Circuit Court of Australia.

The central legal issue before the Court was whether the applicant had established a well-founded fear of persecution for a Convention reason, specifically for his religion, should he be returned to India. This required the Court to assess the applicant's subjective fear and the objective reasonableness of that fear, considering the evidence presented regarding the political and religious situation in Punjab and the applicant's specific circumstances and activities. The Court also had to determine if the Minister's decision was affected by an error of law.

Judge Riethmuller found that the applicant had not established a well-founded fear of persecution. The Court considered the evidence of the general situation in Punjab but concluded that it did not demonstrate that the applicant, as an individual, would face persecution for his religious beliefs or activities. The Court applied the principles established in cases concerning the assessment of protection visa claims, focusing on the need for a genuine and subjectively held fear that is objectively reasonable in the circumstances. The Court found that the applicant's claims were not sufficiently substantiated to meet the threshold for a well-founded fear of persecution under the Migration Act 1958 (Cth).

The application for judicial review was dismissed.

Orders