Singh v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1652

Catchwords:
MIGRATION – Application in a case to reinstate application dismissed for failure to appear – proceeding previously dismissed for previous failure to appear.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c)

Applicant:

SARBJEET SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 1156 of 2014

Judgment of:

Judge Wilson

Hearing date:

6 May 2016

Date of Last Submission:

6 May 2016

Delivered at:

Melbourne

Delivered on:

6 July 2016

REPRESENTATION

No appearance

Counsel for the First Respondent:

Mr T. Smyth

Solicitors for the
First Respondent:

Australian Government Solicitor

ORDERS

The application in a case filed by the applicant on 13 April 2016 is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $1,706.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1156 of 2014

SARBJEET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

In this application in a case, Sarbjeet Singh (“the applicant”) sought the following order –
1. The matter will reopen.[1]
[1] Application in a case filed on 13 April 2016 at p.2.
The proceeding was fixed for final hearing and came on before me on

6 May 2016.
Mr T. Smyth of counsel represented the first respondent, the

Minister for Immigration and Border Protection (“the Minister”).
When the case was called on for hearing, the applicant did not appear.
The case was called outside of Court at 10.00 a.m. and despite the call, the applicant did not appear.
The applicant had previously failed to appear on 6 April 2016. On that day, the proceeding was dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) by reason of the failure of the applicant to attend.
The applicant had been given a number of indulgences. He chose not to prosecute his application on 6 May 2016.
As a result, and after the applicant had been contacted to alert him to the hearing this day, I dismissed his application.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date: 6 July 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 protection visa. The applicant, who is of Sikh faith and from Punjab, India, claimed to fear persecution by both the Indian authorities and the Khalistan Liberation Force (KLF) due to his alleged involvement with a Sikh separatist organisation. The Federal Court was asked to determine whether the Minister's decision was affected by jurisdictional error.

The central legal issue before the Court was whether the delegate of the Minister had failed to consider relevant considerations, specifically the applicant's claims of persecution by the KLF, when assessing his application for a protection visa. The applicant argued that the delegate's assessment had focused solely on the risk of persecution by the Indian authorities and had not adequately addressed the distinct threat posed by the KLF, thereby failing to consider a material part of his protection claim.

Judge Wilson found that the delegate's reasons for decision did not demonstrate a proper consideration of the applicant's claims regarding persecution by the KLF. The reasons provided by the delegate appeared to conflate the applicant's fear of the Indian authorities with his fear of the KLF, failing to engage with the specific evidence and arguments presented by the applicant concerning the latter. This failure to consider a material aspect of the applicant's protection claim constituted a jurisdictional error. The Court therefore quashed the decision of the Minister and remitted the application for a protection visa to the Minister for reconsideration according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established