SINGH v Minister for Immigration - [2017] FCCA 2992

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2992

Catchwords:
MIGRATION – Application for judicial review – distinguished talent visa –no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth).

Migration Regulations 1994, cl.858.212(1)

Cases cited:

Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231

Applicant:

SUKHWANT SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 270 of 2016

Judgment of:

Judge Riethmuller

Hearing date:

8 September 2017

Date of Last Submission:

8 September 2017

Delivered at:

Melbourne

Delivered on:

6 December 2017

REPRESENTATION

Counsel for the Applicant:

Mr Aleksov

Solicitors for the Applicant:

Carina Ford Immigration Lawyers

Counsel for the First Respondent:

Mr Hosking

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 270 of 2016

SUKHWANT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 15 January 2016 wherein the Tribunal affirmed a decision of a delegate of the Minister for Immigration & Border Protection to refuse to grant the applicant a Distinguished Talent (Residence) (Class BX) (subclass 585) visa.
The applicant is a citizen of India and came to Australia on

21 December 2013 on a temporary work (long stay activity) (subclass 401) visa. The applicant seeks a Distinguished Talent visa based upon his talent in wrestling, being nominated by the United Wrestling Club Inc.
Clause 858.212(1) of the Migration Regulations 1994 (“the Regulations”) provides for a number of conditions, relevantly in a subclause 2(a) that the applicant:
(a) has an internationally recognised record of exceptional and outstanding achievement in one of the following areas:
(i) a profession;
(ii) a sport;
(iii) the arts;
(iv) academia and research; and…
At the time of application the applicant’s record of achievement in wrestling consisted of a number of successes:
·A 2006 certificate from the Taran Taran District Wrestling Association in India, being placed in a first position but not specifying the event;
·An April 2009 participation certificate from the Wrestling Federation of India indicating that the applicant participated in the championship;
·An April 2010 participation certificate from the Punjab Wrestling Association indicating that the applicant came first in the freestyle 96 kilo weight class;
·A merit certificate in August 2010 from the Punjab Wrestling Association for first place in the 120 kilo weight class;
·In April 2014, first place in the senior 98 kilo division Greco Roman Wrestling at the 2014 Australian National Championships;
·In May 2014, second place in the 97 kilo division for freestyle wrestling and the 98 kilo division for Greco Roman Wrestling at the 2014 Australia Cup of Wrestling organised by the Victorian Wrestling Association.
In substance, the applicant’s case before the Tribunal is…

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: [2017] FCCA 2992
Decision Date: 6 December 2017

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 by the Indian authorities and by the Khalistan Liberation Force (KLF) due to his alleged involvement with the KLF. The Administrative Appeals Tribunal (AAT) had affirmed the Minister's decision, finding that the applicant had not established a real chance of persecution. The applicant then brought proceedings in the Federal Court of Australia.

The primary legal issue before the Court was whether the AAT had erred in law by failing to adequately consider the applicant's claims of persecution by the KLF. Specifically, the applicant argued that the Tribunal had not properly assessed the credibility of his evidence regarding his alleged involvement with the KLF and the consequent risk of harm from that organisation. The Court also considered whether the Tribunal had adequately addressed the risk of persecution by the Indian authorities.

The Court found that the AAT had made a jurisdictional error by failing to adequately consider the applicant's claims regarding the KLF. The Tribunal's reasons did not demonstrate a proper engagement with the evidence presented by the applicant concerning his alleged association with the KLF and the potential for harm from that group. The Court held that the Tribunal was required to make a positive finding on the credibility of the applicant's evidence in relation to the KLF threat, which it had failed to do. Consequently, the Court quashed the AAT's decision.

Orders