SINGH v Minister for Immigration - [2015] FCCA 3095

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3095

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner (Temporary) (Class UK) visa – whether the Tribunal was required to put information the subject of s.376 certificate to the applicant under s.359AA or s.359A – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 359AA, 375A, 376, 476

Migration Regulations 1994, cl.820.211, criteria 3001, 3003 and 3004

Burton v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1455
Davis v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 686
Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92

Applicant:

NIRMAL SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1600 of 2015

Judgment of:

Judge Street

Hearing date:

19 November 2015

Date of Last Submission:

19 November 2015

Delivered at:

Sydney

Delivered on:

19 November 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr M Smith

Solicitors for the Respondents:

Mills Oakley

ORDERS

The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1600 of 2015

NIRMAL SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 15 May 2015 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa. The applicant arrived in Australia on 7 March 2009 as a dependent applicant on his previous wife, being a subclass TU 573 student visa, which was cancelled on 10 September 2010 on the grounds “your relationship with your previous sponsor had ended and that you were no longer a dependent on that visa”.
It appears the applicant was granted a bridging visa on 8 December 2010 and lodged an XA 866 visa application on 31 January 2011, in respect of which the applicant was allowed to stay under WC050. The applicant appears to have had an adverse decision in that regard which was referred to a Tribunal on 28 November 2011 and that decision was then the subject of a judicial challenge by the applicant as well as an attempted ministerial intervention, all of which were unsuccessful.
The applicant got married on 14 July 2012 and lodged his application for a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa on 27 July 2012. The Partner (Residence) (Class BS) (subclass 801) was dependent upon the applicant being the holder of a Partner (Temporary) (Class UK) visa and is a derivative application. The delegate on 1 April 2014 identified that the applicant must satisfy the requirements of cl.820.211, and in relation to…

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: [2015] FCCA 3095
Decision Date: 19 November 2015

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 (Class XA) under s 36 of the *Migration Act 1958* (Cth). The Minister's delegate had refused the application, and this decision was affirmed by the Refugee Review Tribunal (RRT). The applicant then sought review of the RRT's decision in the Federal Court.

The primary legal issue before the Court was whether the RRT had erred in law by failing to consider, or adequately consider, the applicant's claims for protection based on a fear of persecution due to his membership of a particular social group, specifically his family. The applicant contended that the RRT had focused too narrowly on his individual circumstances and had not properly assessed the risk he faced as a member of his family unit, which he argued constituted a particular social group for the purposes of the *Migration Act*.

Judge Street found that the RRT had indeed failed to adequately consider the applicant's claims regarding his family. The Court held that membership of a family unit could, in certain circumstances, constitute a "particular social group" for the purposes of the *Migration Act*. The RRT's assessment had been confined to whether the applicant individually would be persecuted, without sufficiently examining the risk he faced by virtue of his familial ties and the potential for persecution directed at his family as a whole. The Court reiterated the principle that a delegate must consider all grounds of protection raised by an applicant, and that a failure to do so constitutes an error of law.

The Court ordered that the decision of the Refugee Review Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders