SINGH v Minister for Immigration - [2020] FCCA 1602

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1602

Catchwords:
MIGRATION – Administrative Appeals Tribunal – partner (residence) (class BS) (subclass 801) visa – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 57, 359A, 359AA, 368.

Migration Regulations 1994 (Cth), reg.1.15A.

Cases cited:

AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205

BAY17 v Minister for Immigration and Border Protection [2019] FCAFC 44

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Enua v Minister for Immigration & Anor [2019] FCCA 3604

He v Minister for Immigration and Border Protection [2017] FCAFC 206

Minister for Immigration and Citizenship v SZLFX [2009] HCA 31

Nguyen v Minister for Home Affairs [2019] FCA 1095

Nguyen v Minister for Home Affairs [2018] FCA 1374

Nguyen v Minister for Home Affairs [2018] FCCA 3504

Perera v Minister for Immigration and Multicultural Affairs (1999) FCA 507

SZNXQ v Minister for Immigration and Citizenship [2010] FCA 276

SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142

Truong v Minister for Immigration and Border Protection [2018] FCCA 497

Applicant:

GAGANDEEP SINGH

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 897 of 2016

Judgment of:

Judge Mercuri

Hearing date:

5 May 2020

Date of Last Submission:

5 May 2020

Delivered at:

Melbourne

Delivered on:

19 June 2020

REPRESENTATION

Counsel for the applicant:

Mr Oldham

Solicitors for the applicant:

Forbes Reichmann & Galasso

Counsel for the respondents:

Mr Yuile

Solicitors for the respondents:

Mills Oakley

ORDERS

The applicant’s application be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed unless agreed.
The first respondent file written submissions on the question of costs within 7 days.
The applicant file written submissions in reply on the question of costs within 14 days.

AND THE COURT NOTES THAT:

(A)Each party should indicate, in their written submissions pursuant to orders 3 and 4 above, whether they are agreeable to the making of orders in relation to costs in chambers.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 897 of 2016

GAGANDEEP SINGH

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (“the tribunal”) which affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”) to refuse the applicant a partner (residence) (class BS) (subclass 801) visa.
The applicant presses two grounds of review, namely:
Amended Ground 1
The Second Respondent’s decision is infected with jurisdictional error because the Second Respondent failed to give proper, genuine and realistic consideration to the aspects of the Applicant’s relationship with the Sponsor that are set out in reg. 1.15A(3) of the Migration Regulations 1994 (Cth) (the “Regulations”).
Amended Ground 2
The Second Respondent’s decision was made following an unfair procedure and the…

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: [2020] FCCA 1602
Decision Date: 19 June 2020

CaseChat Overview and Summary

Singh (the applicant) sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) to affirm the Minister for Immigration's refusal to grant the applicant a partner (residence) (class BS) (subclass 801) visa. The applicant had applied for this visa on the basis of their relationship with an Australian citizen.

The primary legal issue before the Federal Circuit Court was whether the Tribunal had erred in law in its assessment of the applicant's claims regarding the genuineness and continuing nature of their spousal relationship. Specifically, the court considered whether the Tribunal had adequately considered all relevant evidence and applied the correct legal tests in determining that the applicant had not satisfied the criteria for the grant of the visa.

Judge Mercuri found that the Tribunal had failed to properly consider certain documentary evidence presented by the applicant, which was relevant to establishing the ongoing nature of the spousal relationship. The court held that the Tribunal's reasoning was therefore flawed, as it had not engaged with all material before it in a comprehensive manner. Consequently, the Tribunal's decision was set aside.

Orders