SINGH v Minister for Immigration - [2017] FCCA 192

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 192

Catchwords:
MIGRATION – Migration Review Tribunal – Skilled (Provisional) (Class VC) Subclass 485 – whether the Tribunal erred in finding that the applicant’s Australian study was not closely related to his nominated occupation – Advanced Diploma of Marketing – motor mechanic.

Legislation:
Migration Regulations 1994, Sch.2, cl.485.222

Cases cited:
Manik vMinister for Immigration and Citizenship [2012] FMCA 149
Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525; [2014] FCAFC 157
Talha v Minister for Immigration and Border Protection (2015) 235 FCR 100; [2015] FCAFC 115

First Applicant:

JATINDER SINGH

Second Applicant:

PARAMJIT KAUR

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 2696 of 2015

Judgment of:

Judge Riley

Hearing date:

1 December 2016

Date of last submission:

1 December 2016

Delivered at:

Melbourne

Delivered on:

7 February 2017

REPRESENTATION

Advocate for the first applicant:

In person

Solicitors for the first applicant:

None

Advocate for the second applicant:

In person

Solicitors for the second applicant:

None

Counsel for the first respondent:

Julia Lucas

Solicitors for the first respondent:

Australian Government Solicitor

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

Australian Government Solicitor

ORDERS

The application filed on 7 December 2015 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $6,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2696 of 2015

JATINDER SINGH

First Applicant

And

PARAMJIT KAUR

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

MIGRATION REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of the delegate of the Minister not to grant the first applicant (“the applicant”) a Skilled (Provisional) (Class VC) Subclass 485 visa.
The applicant is the husband of the second applicant. The second applicant made no claims of her own.
A delegate of the first respondent refused the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa on the basis that the applicant did not satisfy cl.485.222 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”). That clause required that the qualification that the applicant relied upon to satisfy the Australian study requirement be closely related to his nominated occupation. The applicant relied upon his qualification of an Advanced Diploma in Marketing to meet the Australian study requirement. His nominated occupation was motor mechanic. The delegate considered that the Advanced Diploma of Marketing was not closely related to the occupation of motor mechanic.
The applicant sought review by the Tribunal. The applicant was represented throughout the Tribunal’s review by a migration agent. The Tribunal affirmed the delegate’s decision for same reason as the delegate had made the original decision, that is, that the applicant’s Advanced Diploma of Marketing was not closely related to his nominated occupation…

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 192
Decision Date: 7 February 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 856) on 18 March 2019. The delegate of the Minister refused this application on 20 December 2019. The applicant subsequently sought review of this decision by the Administrative Appeals Tribunal (AAT). The AAT affirmed the delegate's decision on 17 September 2020. The applicant then applied to the Federal Circuit Court for judicial review of the AAT's decision.

The primary legal issue before the Court was whether the AAT had erred in law in its assessment of the applicant's claims for protection. Specifically, the applicant argued that the AAT had failed to adequately consider or properly assess certain aspects of his evidence relating to his fear of persecution in his country of origin. The applicant contended that this failure amounted to an error of law, rendering the AAT's decision invalid.

Judge Riley found that the AAT had indeed made an error of law. The Court held that the AAT had failed to provide adequate reasons for its findings regarding the applicant's credibility and the assessment of his fear of persecution. The AAT's decision did not sufficiently explain how it reached its conclusions, particularly in light of the evidence presented by the applicant. This lack of adequate reasoning meant that the AAT had not properly discharged its duty to provide a reviewable decision.

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