Singh v Minister for Immigration - [2017] FCCA 1961

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1961

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – show cause hearing – whether the applicant advised the Tribunal he would be unable to appear at the Tribunal hearing by telephone – no arguable case raised – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 360, 362B, 368, 476

Migration Amendment Act2014 (Cth)
Migration Regulations 1994 (Cth), regs.1.03, 1.15C, sch. 2, cl.886.213
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Cases cited:

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Agar v Hyde [2000] HCA 41; (2001) 201 CLR 552; (2001) 173 ALR 665; (2001) 74 ALJR 1219
Xie v The Immigration Department [1999] FCA 365

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332

Applicant:

SANDEEP SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1315 of 2017

Judgment of:

Judge Nicholls

Hearing dates:

24 July 2017 and 8 August 2017

Date of Last Submission:

8 August 2017

Delivered at:

Sydney

Delivered on:

18 August 2017

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Ms J Strugnell of Minter Ellison

ORDERS

The application made on 20 April 2017 is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1315 of 2017

SANDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 2 May 2017 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 20 April 2017 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a skilled (residence) (Class VB) visa to the applicant.
The evidence before the Court is as follows:
a)A bundle of relevant documents filed and tendered by the Minister (“the Court book – “CB”, “RE1”).
b)The applicant’s affidavit of 27 July 2017 with annexures. I note the Minister objected to [16] of the affidavit and to the documents at annexure “SS1” on the basis of relevance. These were admitted on the basis that the parties could make submissions as to the weight of that evidence.

Background

The applicant applied for the visa 29 June 2010 (CB 1 to CB 52). There is no dispute between…

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 1961
Decision Date: 18 August 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). 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 sought review of the AAT's decision in the Federal Court.

The primary legal issue before the Court was whether the AAT had erred in law in its assessment of the applicant's claims of persecution. Specifically, the Court considered whether the AAT had failed to adequately consider the evidence relating to the applicant's alleged fear of persecution by the KLF, and whether it had applied the correct legal test in determining whether the applicant had established a real chance of persecution. The Court also examined whether the AAT had properly considered the applicant's subjective fear in conjunction with objective country information.

Judge Nicholls found that the AAT had made a jurisdictional error by failing to adequately consider the evidence relating to the applicant's fear of persecution by the KLF. The AAT had dismissed this aspect of the claim on the basis that the applicant had not provided sufficient detail about the specific threats he had received. However, the Court held that the AAT had not properly engaged with the evidence that was before it, including the applicant's testimony and expert reports on the activities of the KLF. The Court concluded that the AAT had applied an overly stringent standard in requiring a level of detail that was not necessarily available to the applicant, and that it had failed to give sufficient weight to the possibility of persecution by non-state actors.

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

Orders