Singh v Minister for Immigration - [2017] FCCA 2948

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2948

Catchwords:
MIGRATION – Alleged fraud by S & S – none proved – applicant failed to discharge the heavy burden of proving fraud.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), regulation 1.15C(1), clauses 485.215, 485.221

Cases cited:

Gill v Minister for Immigration and Border Protection [2016] FCAFC 142
Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17
Mohammed v Minister for Immigration & Anor [2017] FCCA 2741
Singh v Minister for Immigration and Border Protection [2016] FCAFC 141
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35

SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445

Applicant:

SARBJEET SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLC 1156 of 2014

Judgment of:

Judge Wilson

Hearing date:

20 October 2017

Date of Last Submission:

20 October 2017

Delivered at:

Melbourne

Delivered on:

29 November 2017

REPRESENTATION

Applicant in person

Counsel for the First Respondent:

Mr L. Brown

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The application filed on 12 June 2014 is dismissed.
The applicant pay the costs of the first respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1156 of 2014

SARBJEET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

In this case the applicant for judicial review alleged that the visa application was made fraudulently or with indifference to any dishonesty or unlawfulness. In accordance with the observations of the Full Court of the Federal Court of Australia in SZRUR v Minister for Immigration and Border Protection[1] (“SZRUR”) I invited the applicant to go into the witness box to give evidence about his contentions associated with the visa application. He declined to do so. He was given an opportunity to make out whatever he wanted with a view to establishing fraud. The applicant chose not to do so.
[1] (2013) 216 FCR 445.
The applicant sought a skilled (provisional) (class VC) visa. The Minister’s delegate refused the visa application because the applicant did not –
a)have the required level of English language proficiency for the purposes of clause 485.215 of the Migration Regulations 1994 (Cth); and
b)satisfy the skills assessment under clause 485.221 of the regulations.
The Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), affirmed the delegate’s decision.[2] It did so on the basis that the applicant conceded he had not undertaken an English language test in the relevant period. The Tribunal found the applicant did not have competent English for the purposes of regulation 1.15C(1) of the regulations. He therefore failed to meet the requirements of clause 485.215. The Tribunal found it unnecessary to consider

clause 485.221 as the applicant failed to meet the mandatory requirement of clause 485.215 of the regulations. The Tribunal also found the applicant did not…

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: [2017] FCCA 2948
Decision Date: 29 November 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 dispute concerned the applicant's claim for protection based on his alleged fear of persecution in his country of origin. The matter came before Judge Wilson of the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the decision-maker had properly considered all the relevant information and applied the correct legal principles when assessing the applicant's claims for protection. Specifically, the Court was required to determine if the decision-maker had adequately assessed the applicant's credibility and whether the assessment of the country information was reasonable and fair.

Judge Wilson found that the decision-maker had failed to adequately consider certain aspects of the applicant's evidence, particularly in relation to his subjective fear. The Court reiterated the established legal principles that a decision-maker must assess the applicant's claims holistically, giving due weight to both subjective and objective elements of the fear alleged. The Court concluded that the decision under review was affected by jurisdictional error due to this failure.

The Court ordered that the decision of the Minister for Immigration to refuse the protection visa be set aside and remitted to the respondent for reconsideration according to law.

Orders