Singh v Minister for Immigration - [2016] FCCA 774

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 774

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal was required to determine if false information was purposely untrue – whether futile to grant the relief sought – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.31, 65, 97, 338, 474
Migration Regulations 1994 (Cth), reg.1.15B, 1.15D, 2.01, Schedule 2 – cls. 855.221, 885.224, Schedule 8 – Public Interest Criterion 4020

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42
Lansen & Ors v Minister for Environment and Heritage & Anor [2008] FCAFC 189
Minister for Aboriginal AffairsvPeko-Wallsend Ltd (1986) 162 CLR 24
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190

Applicant:

GURVINDER SINGH

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1982 of 2014

Judgment of:

Judge Emmett

Hearing date:

6 April 2016

Date of Last Submission:

6 April 2016

Delivered at:

Sydney

Delivered on:

4 May 2016

REPRESENTATION

Counsel for the Applicant:

Mr David Godwin

Solicitors for the Applicant:

Brett Slater Solicitors

Solicitor for the Respondents:

Mr Julian Pinder
(Minter Ellison Lawyers)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1982 of 2014

GURVINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated and handed down on 19 June 2014 (“the Tribunal”).
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

On 16 July 2009, the applicant lodged an application for a Skilled (Residence) (Class VB) visa with the Department of Immigration and Citizenship (“the Department”).
On 25 November 2013, the Delegate refused the applicant’s application for a skilled visa.
On 12 December 2013, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 19 June 2014, the Tribunal affirmed the decision of the Delegate not to grant a skilled visa.
On 16 July 2014, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Skilled (Residence) (Class VB)…

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.

Keep reading for free

Create a free CaseChat account to read Singh v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FCCA 774
Decision Date: 4 May 2016

CaseChat Overview and Summary

In *Singh v Minister for Immigration*, Emmett J of the Federal Court of Australia considered an application for a skilled visa. The applicant was required to satisfy clause 885.224 of Schedule 2 to the *Migration Regulations 1994* (Cth), which mandates that an applicant must meet certain public interest criteria, including Public Interest Criterion (PIC) 4020. The dispute centred on whether the applicant had provided a bogus document or false or misleading information in relation to their visa application or a previous visa.

The court was required to determine the meaning and application of PIC 4020, specifically what constitutes a "bogus document" and "information that is false or misleading in a material particular." The court also had to consider the provisions for waiving these requirements under PIC 4020(4). Additionally, the case touched upon the English language proficiency requirements for skilled visas, distinguishing between "Vocational English" and "Proficient English" as defined in the Regulations and their impact on the points assessment under Subdivision B of Division 3 of Part 2 of the *Migration Act 1958* (Cth).

Emmett J applied the definitions of "bogus document" found in section 97 of the *Migration Act 1958* (Cth) and "information that is false or misleading in a material particular" as set out in PIC 4020(5). The judge noted that a document is considered bogus if the Minister reasonably suspects it was not issued in respect of the person, is counterfeit or altered without authority, or was obtained due to a false or misleading statement. Information is false or misleading in a material particular if it is false or misleading at the time it is given and relevant to the criteria for visa assessment. The court also acknowledged the Minister's discretion to waive PIC 4020 requirements if compelling circumstances affecting Australia's interests or compassionate or compelling circumstances affecting an Australian citizen, permanent resident, or eligible New Zealand citizen are demonstrated. The decision also referenced the points system for skilled visas, where different levels of English proficiency, such as "Vocational English" and "Proficient English," attract different point allocations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For the grant of a skilled visa, an applicant is required to satisfy cl.885.224 of Schedule 2 to the Regulations, which relevantly states:“Criteria to be satisfied at time of decision885.224 The applicant:(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020…” Public Interest Criterion 4020 (“PIC 4020”) relevantly states:“ (1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:(a) the application for the visa; or(b) a visa that the applicant held in the period of 12 months before the application was made.… (3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:(a) compelling circumstances that affect the interests of Australia; or(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;justify the granting of the visa.(5) In this clause:information that is false or misleading in a material particular means information that is:(a) false or misleading at the time it is given; and(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information..”(Emphasis added). Further, “bogus document” is defined in s.97 of the Act, as follows: “97 InterpretationIn this Subdivision:…bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:(a) purports to have been, but was not, issued in respect of the person; or(b) is counterfeit or has been altered by a person who does not have authority to do so; or(c) was obtained because of a false or misleading statement, whether or not made knowingly.” Moreover, under cl.855.221 of Schedule 2 to the Regulations, an applicant for a skilled visa is required to meet the qualifying score when being assessed in relation to the grant of the visa under Subdivision B of Division 3 of Part 2 of the Act. That Subdivision provides a points system, under which an applicant for a skilled visa is given an assessed score based on a prescribed number of points for particular attributes. One of the relevant attributes is an applicant’s level of English proficiency, which is assessed under the International English Language Testing System (“IELTS”). The Regulations distinguish between IELTS test scores evincing “Vocational English” and “Proficient English”. “Vocational English” is defined in reg.1.15B of the Regulations and entitles an applicant to 25 points under the points system. “Proficient English” is defined in reg.1.15D of the Regulations and entitles an applicant to 15 points under the points system.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.