SINGH v Minister for Immigration - [2016] FCCA 1225

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1225

Catchwords:
MIGRATION – Student visa – adverse certification from education provider – repeal of reg.2.43(2)(b) of Migration Regulations 1994 (Cth) between time of Delegate’s decision and Tribunal review – Tribunal bound to apply law as at date of hearing before it.

Legislation:

Migration Act 1958 (Cth), ss.116, 348, 349, 499

Migration Regulations 1994 (Cth)
Migration Legislation Amendment Regulation 2013 (No. 1) (Cth)

Cases cited:
An v Minister for Immigration (2007) 160 FCR 480
SAAZ v Minister for Immigration [2002] FCA 791
Traut v Faustman Bros Pty Ltd (1983) 48 ALR 313
Harris v Caladine (1991) 172 CLR 84
Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Turnbull v NSW Medical Board (1976) 2 NSWLR 281

Applicant:

AMANJOT SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 938 of 2014

Judgment of:

Judge Dowdy

Hearing date:

8 March 2016

Date of Last Submission:

8 March 2016

Delivered at:

Sydney

Delivered on:

25 May 2016

REPRESENTATION

Counsel for the Applicant:

Mr A Kumar of Counsel

Counsel for the First Respondent:

Ms C Hillary (Solicitor)

Solicitors for the First Respondent:	DLA Piper
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice.

ORDERS

The Further Amended Application be dismissed with the question of costs reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 938 of 2014

AMANJOT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant is a male citizen of India aged 27 years, having been born on 29 October 1988. He seeks in this proceeding, by Further Amended Application dated 16 January 2016 and filed in Court on 8 March 2016 (Further Amended Application), to quash a decision of the Second Respondent, the Administrative Appeals Tribunal (at the time of the decision the Migration Review Tribunal) (Tribunal), dated 11 March 2014, affirming a decision of the Delegate (the Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 22 January 2013 cancelling the Applicant’s Student (Temporary) (Class TU) Vocational Education and Training Sector (Subclass 572) visa (Student Visa).
Mr Kumar of Counsel appeared at the hearing for the Applicant and Ms Hillary appeared for the First Respondent.

General Background

The Applicant’s Student Visa had been granted on 31 August 2011 with an expiry date of 2 May 2014. Relevantly, the Applicant was studying at the Australian Academy of Commerce Pty Ltd (AAC) for a Certificate II in Business. His Student Visa was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations). Condition 8202(3)(b) required the Applicant to have not been certified by his education provider, in this instance AAC, as not achieving satisfactory course attendance.
However, by a Certification for the purposes of subclause cond.8202(3)…

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 1225
Decision Date: 25 May 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, which was refused by the delegate of the Minister. The applicant then sought review of that decision in the Administrative Appeals Tribunal (AAT), which affirmed the delegate's decision. The applicant subsequently filed an application for judicial review in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the AAT had erred in law in its assessment of the applicant's claims for protection. Specifically, the Court was required to consider whether the AAT had failed to adequately assess the risk of harm to the applicant in his country of origin, and whether it had properly applied the relevant legal principles concerning the assessment of protection claims.

Judge Dowdy found that the AAT had made a jurisdictional error by failing to adequately consider all the evidence before it, particularly regarding the applicant's specific circumstances and the potential for harm he faced. The Court held that the AAT had not properly engaged with the evidence in a way that would allow it to make a reasoned and lawful decision. The Court therefore quashed the AAT's decision.

The Court remitted the matter to the Administrative Appeals Tribunal for redetermination according to law.

Orders