SINGH v Minister for Immigration - [2017] FCCA 2198

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2198

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Temporary Business Entry (Class UC) visa – the adverse findings by the Tribunal were clearly open and cannot be said to lack an evident and intelligible justification – the adverse finding by the Tribunal was open in relation to finding that the applicant did not meet the requirements of cl.4020(1) – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.97, 476

Migration Regulations, cl.4020 of Schedule 4

Applicant:

PRABHJOT SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 801 of 2017

Judgment of:

Judge Street

Hearing date:

11 September 2017

Date of Last Submission:

11 September 2017

Delivered at:

Sydney

Delivered on:

11 September 2017

REPRESENTATION

Solicitors for the Applicant:

Mr M E Arch
Concordia Pacific

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

MinterEllison

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 801 of 2017

PRABHJOT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 16 February 2017 affirming a decision of the delegate not to grant the applicant a Temporary Business Entry (Class UC) visa.
On 14 July 2015, a delegate found that the applicant failed to meet the criteria for the visa. The delegate found that the applicant had given or caused to be given a bogus document that was false or misleading and that the applicant did not meet Public Interest Criterion (PIC) 4020(1)(a) of Schedule 4 to the Migration Regulations 1994 (“the Regulations”). The delegate then found that there were not compelling and compassionate reasons for waiving the criteria.

The Tribunal’s decision

The applicant applied for review on 4 August 2015. By letter dated 8 December 2016, the applicant was invited to attend a hearing on 11 January 2017. The applicant appeared on that date to give evidence and present arguments and was assisted by his registered migration agent by telephone.
The Tribunal identified the applicant’s background in respect of the visa application and the outcome before the delegate. The Tribunal noted that the applicant appeared before the Tribunal. The Tribunal correctly identified the relevant law in relation to Public Interest Criterion 4020.
The Tribunal made reference to the visa application form, giving the details of the most recent English (IELTS) test with a reference number and particular scores. Those scores were all ones which would enable the applicant to meet the IELTS score criteria for the grant of a visa. The applicant’s real scores were ones…

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 2198
Decision Date: 11 September 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 visa. The applicant had applied for a Protection Visa (Class XA) under s 36 of the *Migration Act 1958* (Cth). The Minister's delegate had refused the application, and this decision was affirmed by the Refugee Review Tribunal (RRT). The applicant then sought review of the RRT's decision in the Federal Court.

The primary legal issue before the Court was whether the RRT had erred in law by failing to consider, or adequately consider, the applicant's claims for protection based on a fear of persecution due to his membership of a particular social group, specifically his family. The applicant contended that the RRT had focused too narrowly on his individual circumstances and had not properly assessed the risk he faced as a member of his family unit, which he argued constituted a particular social group for the purposes of the *Migration Act*.

Judge Street found that the RRT had indeed failed to adequately consider the applicant's claims regarding his family. The Court held that membership of a family unit could, in certain circumstances, constitute a "particular social group" for the purposes of the *Migration Act*. The RRT's assessment had been confined to whether the applicant individually would be persecuted, without sufficiently examining the risk he faced by virtue of his familial ties and the potential for persecution directed at his family as a whole. The Court reiterated the principle that a delegate must consider all grounds of protection raised by an applicant, and that a failure to do so constitutes an error of law.

The Court ordered that the decision of the Refugee Review Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders