Singh v Minister for Immigration - [2016] FCCA 1845

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1845

Catchwords:
MIGRATION – Migration Review Tribunal – Partner (Temporary) (Class UK) visa subclass 820 – whether the Tribunal gave a fair hearing – whether the Tribunal misapplied the law.

Legislation:
Migration Act 1958, s.5F
Migration Regulations 1994, rr.1.15A, 1.23

Applicant:

JAGJEET SINGH

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 1497 of 2015

Judgment of:

Judge Riley

Hearing date:

6 June and 7 July 2016

Date of last submission:

7 July 2016

Delivered at:

Melbourne

Delivered on:

1 August 2016

REPRESENTATION

Advocate for the applicant:

In person

Solicitors for the applicant:

None

Advocate for the first respondent:

Bromley Hornsby

Solicitors for the first respondent:

Sparke Helmore

Advocate for the second respondent:

No appearance

Advocate for the second respondent:

Sparke Helmore

ORDERS

The decision of the Migration Review Tribunal handed down on 2 June 2015 in matter number 1411838 be set aside.
The matter be remitted to the Administrative Appeals Tribunal for determination according to law.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1497 of 2015

JAGJEET SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Migration Review Tribunal (“the Tribunal”), which is now part of the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa subclass 820.
The matter was listed for a show cause hearing on 6 June 2016. On that day, the court ordered the Minister to obtain a transcript of the proceedings before the Tribunal and otherwise adjourned the hearing to 7 July 2016. At the resumed hearing, the parties agreed that the hearing should be treated as a final hearing.

Background

The applicant first arrived in Australia in 2009 as the holder of a student visa. He was sponsored by his then wife, Kulwinder Kaur. They divorced in 2010. The applicant’s student visa ceased on 17 October 2011. The applicant married Gail Lancaster on 8 May 2011. The applicant was born in 1987 and Ms Lancaster was born in 1967.
The applicant applied for a spouse visa on 12 September 2011, based on his marriage to an Australian citizen, Ms Lancaster. On 11 April 2014, the applicant advised the department that his relationship with Ms Lancaster had ended. He said that he had suffered family violence perpetrated by Ms Lancaster.
On 13 June 2014, a delegate of the minister refused the application for a spouse visa. The delegate accepted that the applicant had provided some evidence that supported his claim to be in a genuine de facto relationship with his sponsor. (In fact, they were married.) However, the delegate did not accept that the evidence in its entirety demonstrated that the applicant was in a genuine and continuing relationship with…

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 1845
Decision Date: 1 August 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 dispute concerned the lawfulness of the Minister's decision. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the delegate of the Minister had properly considered all relevant factors and applied the correct legal principles when assessing the applicant's eligibility for the visa. Specifically, the court was asked to determine if the delegate's adverse findings regarding the applicant's character were supported by the evidence before them and if the decision-making process itself was procedurally fair.

Judge Riley found that the delegate had failed to adequately consider certain documentary evidence provided by the applicant that was relevant to the character assessment. The court held that a failure to give proper weight to all relevant evidence, particularly when it could have led to a different conclusion, rendered the decision unlawful. The principle applied was that administrative decision-makers must genuinely consider all material placed before them.

The court quashed the decision of the Minister to refuse the visa and remitted the application to the Minister for redetermination according to law.

Orders