Singh v Minister for Immigration - [2020] FCCA 1583

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1583

Catchwords:
MIGRATION – Application for judicial review – student visa – consideration of financial requirements of visa – allegation of apprehended bias – apprehended bias established – writs issued.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), cl.5A408

Cases cited:

SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055

Mario Giretti v Deputy Commissioner of Taxation [1996] FCA 1769
Lee v Minister for Immigration and Citizenship [2007] FCAFC 62
Hamidy v Minister for Immigration and Border Protection [2019] FCA 221
PQSM v Minister for Home Affairs [2019] FCA 1540
AAM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1951

Applicant:

TARANJIT SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2179 of 2016

Judgment of:

Judge Riethmuller

Hearing date:

4 March 2020

Date of Last Submission:

12 March 2020

Delivered at:

Melbourne

Delivered on:

17 June 2020

REPRESENTATION

Counsel for the Applicant:

Ms Costello SC

Solicitors for the Applicant:

Da Gama & Associates

Counsel for the First Respondent:

Mr Minson

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 15 September 2016.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine the application for review according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2179 of 2016

TARANJIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 15 September 2016. As the decision was an oral decision, a written record of reasons took some time to produce and was forwarded to the applicant on 14 October 2016.
The applicant had sought a Student (Temporary) (Class TU) Subclass 573 visa under the Migration Act 1958 (Cth) (‘the Act’). This application was lodged on 13 March 2015 and refused by a delegate of the Minister on 16 December 2015. The applicant sought judicial review by the Tribunal on 23 December 2015.
The applicant’s visa application concerned studies to be undertaken for the completion of a Bachelor of Professional Accounting degree. At the time of the Tribunal hearing, in September 2016, the applicant explained that he had completed two-thirds of his studies and intended to complete his degree in July the following year. He produced documents showing that he had $14,000 in fees remaining to pay. This was accepted by the Tribunal member.
The applicant needed to satisfy the financial requirements for the visa under cl.5A408 of the Migration Regulations 1994 (Cth) (‘the Regulations’). That clause provided as follows:
5A408 Financial capacity
(1) The applicant must give, in accordance with this clause:
(a) evidence that the applicant has funds from an acceptable source that are sufficient to…

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 1583
Decision Date: 17 June 2020

CaseChat Overview and Summary

Singh, the applicant, sought judicial review of a decision by the Minister for Immigration, the respondent, to refuse his application for a student visa. The core of the dispute concerned the Minister's assessment of Singh's financial capacity to meet the requirements of the visa. Singh alleged that the decision-making process was tainted by apprehended bias. The matter was heard in the Federal Circuit Court of Australia before Judge Riethmuller.

The primary legal issue before the court was whether the delegate who made the decision to refuse the student visa apprehended bias. This involved an examination of whether a reasonable apprehension could arise that the decision-maker might not bring an impartial mind to the question of whether Singh met the financial requirements for the visa.

Judge Riethmuller found that there was an apprehended bias in the decision-making process. The reasoning focused on the conduct of the delegate, which gave rise to a reasonable apprehension that the delegate had predetermined the outcome of the financial assessment, rather than impartially considering the evidence presented by Singh. Consequently, the court concluded that the decision was vitiated by apprehended bias.

Writs of certiorari and mandamus were issued.

Orders