SINGH v Minister for Immigration - [2016] FCCA 2746

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2746

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner (Temporary) (Class UK) Subclass 820 and Partner (Residence) (class BS) (subclass 801) visa – whether the Tribunal complied with its statutory obligations to dismiss the reinstatement application under s.362B(1A)(b) – application of s.362C – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.362B, 362C, 379, 476.

Migration Regulations 1994, Schedule 2 - cls.801.221, 820.221.
Federal Circuit Court Rules2001, r.44.12.

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118.

Applicant:

JATINDER SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1658 of 2016

Judgment of:

Judge Street

Hearing date:

25 October 2016

Date of Last Submission:

25 October 2016

Delivered at:

Sydney

Delivered on:

25 October 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Mr D McLaren

Minter Ellison

ORDERS

The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.
The Applicant pay the First Respondent’s costs fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1658 of 2016

JATINDER 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 Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 June 2016 affirming a decision of the delegate to refuse to grant the applicant a Partner (Temporary) (Class UK) Subclass 820 and Partner (Residence) (class BS) (subclass 801) visa and affirming a decision of the Tribunal made on 7 June 2016 to dismiss the applicant’s application under s.362B(1A)(b) of the Act. The applicant is a citizen of India.

The Delegate’s Decision

On 16 March 2015, the delegate identified the criteria that the applicant had to meet to be granted a Partner (Temporary) (Class UK) Subclass 820 and Partner (Residence) (class BS) (subclass 801) visa. The delegate found the criteria to grant both of those visas had not been met.
The delegate referred to the attempt of an officer of the Department to contact the applicant on 19 December 2014 and the further attempt to contact the applicant on 16 January 2015. The delegate referred to the communications received from the applicant’s migration agent on 27 January 2015.
On 28 January 2015 the applicant was sent a letter providing the applicant with an opportunity to comment on allegations that the relationship had broken down. There was an explanation in the letter as to the circumstances where, even if the relationship has broken down or ended, a visa can still be granted.
The delegate noted that the applicant was given 28 days to provide a response, and that no response was received. The delegate referred to the supporting material that had…

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: [2016] FCCA 2746
Decision Date: 25 October 2016

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