SINGH v Minister for Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2706
Catchwords:
MIGRATION – Skilled (Professional) (Class VC) visa – criterion of competent concessional English (IELTS) not met by applicant – series of unsuccessful test results – applicant relies upon successful test result obtained in India – successful test result obtained after Tribunal had affirmed decision of delegate to refuse visa application – no jurisdictional error shown – principles applicable on show cause hearing – no arguable case – application dismissed.

Legislation:
Federal Circuit Court Rules 2001 (Cth), r.44.12
Migration Act 1958 (Cth), ss.4, 5, 13, 14, 29, 30, 31, 40, 65, 347, 348, 349, 359A, 360, 386D, 474, 475, 476, 496, 498

Migration Regulations 1994 (Cth), regs.1.15, 1.15B, 1.15E, 1E.1, 2.01, 2.02, Sch 2 cl 487.31, 487.32, cl 487.215, cl 487.224

Cases cited:

AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; 114 ALD 1
BMB16 v Minister for Immigration and Border Protection[2017] FCAFC 169
BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78
Gupta & Ors v Minister for Immigration & Anor [2017] FCAFC 172
Habib & Ors v Minister for Immigration & Anor [2010] FMCA 450
JL v Secretary, Department of Family and Community Services [2015] NSWCA 88
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Border Protection v Li (2013) 249 CLR 332
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng(2001) 205 CLR 507
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1
Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW (2005) 145 FCR 523
Morad v El-Ashey [2017] FCA 1136
MZAJQ v Minister for Immigration & Border Protection [2015] FCCA 593
Ngu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 21
Nichol v Discovery Africa Limited [2016] FCAFC 182
Shrethav Migration Review Tribunal (2015) 229 FCR 301
Siddique v Minister for Immigration and Border Protection [2014] FCA 1352
Spencer v The Commonwealth (2010) 241 CLR 118
Sunshine Coast Broadcasters Pty Ltd v Australian Communications and Media Authority[2012] FCA 1205
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZTTW v Minister for Immigration and Border Protection [2014] FCA 837
SZUTB v Minister for Immigration & Border Protection [2015] FCCA 1383
Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158

Applicant: SANDEEP SINGH
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: MLG 2407 of 2016
Judgment of: Judge A Kelly
Hearing date: 1 June 2017
Date of Last Submission: 1 June 2017
Delivered at: Melbourne
Delivered on: 10 November 2017

REPRESENTATION

Applicant: In person
Solicitor for the First Respondent: Ms Wilde
Solicitors for the First Respondent:
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Details
Case
[2017] FCCA 2706
Decision Date

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 applicant, who is from Afghanistan, claimed to fear persecution upon return to his home country due to his perceived association with a political party that opposed the Taliban. The matter came before Judge A Kelly of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had erred in law in assessing the applicant's claims for protection. Specifically, the Court was required to determine if the delegate had failed to properly consider the applicant's subjective fear of persecution and whether the objective assessment of the country information was adequate, particularly in light of the applicant's specific circumstances and the prevailing political situation in Afghanistan.

The Court found that the delegate had failed to adequately consider the applicant's subjective fear. The delegate's assessment had focused heavily on the objective country information without sufficiently engaging with the applicant's personal narrative and the reasons for his fear. The Court reiterated the principle that a subjective fear, even if not objectively likely to be realised, must be genuinely held and considered by the decision-maker. The delegate's failure to properly weigh the applicant's subjective experience against the objective evidence constituted an error of law.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

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