Singh v Minister for Immigration - [2020] FCCA 1182

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION

[2020] FCCA 1182

Catchwords:
MIGRATION – Application for a Skilled – Regional Sponsored (Provisional) (subclass 489) Skilled Regional Sponsored (Provisional) (Class SP) regional sponsored (provisional) (subclass 489) visa – whether the delegate found information provided by the applicant as a bogus document or false or misleading information – whether the delegate misconstrued the applicant’s claims – whether the delegate found the applicant’s evidence to be accurate, consistent and trustworthy – whether the delegate’s decision was irrational or illogical – whether there is jurisdictional error – jurisdictional error made out – application is upheld.

Legislation:

Migration Act 1958 (Cth), ss.477

Migration Regulations 1994 (Cth), cl.489.211, sch.6D

Cases cited:

Minister for Immigration and Border Protection v Tesic (2017) 251 FCR 23

MZXHY v Minister for Immigration and Citizenship [2007] FCA 622

Vo v Minister for Home Affairs [2019] FCAFC 108

Applicant:

PARMINDEER PREET SINGH

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number:

SYG 1774 of 2019

Judgment of:

Judge Humphreys

Hearing date:

14 May 2020

Date of Last Submission:

14 May 2020

Delivered at:

Parramatta

Delivered on:

5 June 2020

REPRESENTATION

Counsel for the Applicant:

Ms Lahoud

Solicitors for the Applicant:

Newman & Associates

Counsel for the Respondents:

Ms Morris

Solicitors for the Respondents:

Clayton Utz

ORDERS

Grant an extension of time for the filing of an application for review to this Court.
An order that the decision of the Minister be quashed.
A writ of mandamus directed to the Minister, requiring him to determine the applicant’s application according to law.
An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from making the future decision or taking the other action the subject of the proceedings.
The Respondent to pay the Applicant’s costs fixed in the amount of $7,463.00.
The Applicant pay the costs of $2,193.00 as a result of costs thrown away.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1774 of 2019

PARMINDEER PREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

REASONS FOR JUDGMENT

Introduction

The applicant applied for a Skilled - Regional Sponsored (Provisional) (subclass 489) (Class SP) visa on 19 May 2018. A delegate of the Minister (“the delegate”) refused the visa application on 15 May 2019, on the basis that the applicant failed to satisfy cl 489.211 of the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate was satisfied there was information that the Minister had been provided with a bogus document or information, which was false or misleading in a material particular, in relation to the visa application.
The applicant now seeks judicial review of the delegate’s decision to refuse his visa. It is to be noted that the application for review by this Court was filed out of time.
The matter was originally listed for hearing on 6 April 2020. Orders fixing that date had been in place for a considerable period of time. When 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 1182
Decision Date: 5 June 2020

CaseChat Overview and Summary

Singh applied to the Minister for Immigration for a Skilled – Regional Sponsored (Provisional) (subclass 489) visa. The delegate of the Minister refused to grant the visa. Singh sought judicial review of this decision in the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were whether the delegate erred in finding that information provided by Singh was a bogus document or constituted false or misleading information, whether the delegate misconstrued Singh's claims, and whether the delegate's assessment of Singh's evidence as accurate, consistent, and trustworthy was flawed. These questions were directed at determining whether the delegate's decision was irrational, illogical, or constituted a jurisdictional error.

Judge Humphreys found that the delegate had failed to properly consider the evidence provided by Singh, particularly in relation to his claims of employment. The Court determined that the delegate's conclusion that the documents were bogus was not supported by the evidence and that the delegate had misconstrued the applicant's submissions. Consequently, the Court held that a jurisdictional error had been made out. The application was upheld.

Orders