Singh v Minister for Immigration - [2016] FCCA 114

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 114

Catchwords:
MIGRATION – Migration Review Tribunal – Partner (Temporary) (Class UK) visa – whether the tribunal was biased – whether the tribunal misunderstood the consideration concerning the basis of any sharing of household expenses – whether the tribunal asked itself whether the applicant and sponsor had a good relationship rather than a genuine relationship.

Legislation:
Migration Act 1958 (Cth), s.5F
Migration Regulations 1994 (Cth), regs.1.15A, sch.2 cll.820.211(2), 820.221(2), 820.221(3)

Cases cited:
Kaur v Minister for Immigration & Anor [2014] FCCA 1282
Minister for Immigration and Citizenship v MZYZA [2013] FCA 572

Applicant:

MANDEEP SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 123 of 2015

Judgment of:

Judge Riley

Hearing date:

17 November 2015

Date of last submission:

2 December 2015

Delivered at:

Melbourne

Delivered on:

1 February 2016

REPRESENTATION

Counsel for the applicant:

The applicant appeared in person

Solicitors for the applicant:

The applicant was not represented

Counsel for the first respondent:

Nick Wood

Solicitors for the first respondent:

DLA Piper Australia

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

DLA Piper Australia

ORDERS

The decision of the Migration Review Tribunal handed down on

5 January 2015 in matter number MRT 1400863 is set aside.
The matter is remitted to the Administrative Appeals Tribunal for determination according to law.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 123 of 2015

MANDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

And

MIGRATION REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Migration Review Tribunal (“the tribunal”). In that decision, the tribunal affirmed a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.

Background

The applicant is a 26 year old national of India. He arrived in Australia in 2008 as the holder of a student visa. His last student visa ceased on 15 March 2014.
In December 2012, the applicant met his sponsor, Rista Campanaro, on a dating website. Ms Campanaro is 37 years old and an Australian citizen of Indonesian background. She had divorced her previous husband in August 2012. The child of that relationship lived with his father. The applicant has not met that child, or other members of Ms Campanaro’s family. Her parents are deceased and her siblings live in Indonesia.
In February 2013, the applicant and his sponsor decided to marry. The sponsor moved in with the applicant in April 2013. They married on

11 May 2013 at the Tandoori Junction Restaurant in Glen Waverley. They lived together until August 2013, when the sponsor left the relationship.
The applicant told the tribunal that the sponsor had gambled a lot and that she had been violent towards him. The applicant obtained an intervention order against his former sponsor in March 2014, about seven months after the relationship had ended.

Legislation

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 114
Decision Date: 1 February 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