Singh v Minister for Immigration - [2015] FCCA 2531

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2531

Catchwords:
MIGRATION – Judicial review – applicant did not receive invitation to appear by fax transmission – legal unreasonableness.

Legislation:

Migration Act 1958 (Cth), ss.362B, 360

Migration Regulations 1994 (Cth)
Statutory Interpretations Act 1901(Cth)
Electronic Transactions Act1999 (Cth)

SZIPL v Minister for Immigration and Anor [2008] FMCA 1501
Minister for Immigration and Border Protection and Singh (2014) 139 ALD 50
Kaur and Minister for Immigration and Border Protection [2014] FCA 915
Minister for Immigration and Li [2013] 249 CLR 332

Applicant:

JAGMEET SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1118 of 2014

Judgment of:

Judge Harland

Hearing date:

16 July 2015

Date of Last Submission:

16 July 2015

Delivered at:

Melbourne

Delivered on:

18 September 2015

REPRESENTATION

Counsel for the Applicant:

Mr Tehan

Solicitors for the Applicant:

Maganty Lawyers

Counsel for the Respondents:

Mr Evans

Solicitors for the Respondents:

Sparke Helmore

ORDERS

That the decision of the Administrative Appeals Tribunal made on 2 May 2014 be quashed.
The Administrative Appeals Tribunal is directed to determine the applicant’s application according to law.
The First Respondent to pay the Applicant’s costs in the sum of $6,825 or such lesser sum as agreed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1118 of 2014

JAGMEET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

The applicant filed an application for judicial review of the Tribunal’s decision made on 2 May 2014 on 6 June 2014. In that application the only ground he set out was that he met the requirements for the visa. The applicant did not comply with the directions for filing made by Registrar Caporale on 3 September 2014. The applicant briefed counsel at the last minute who turned up at the hearing with an affidavit and submissions which had not been filed or served. As a result, although the hearing proceeded, it was not possible to proceed to judgment because the applicant sought leave to file an amended application by the end of the day. The respondent reasonably sought to file further written submissions.
The applicant applied for a skilled visa, subclass 1. His nominated occupation was as a cook. The Delegate found that the applicant did not meet the requirements of cl 485.213 of Schedule 2 of the Migration Regulations 1994 (Cth). The Australian study requirement must be satisfied in the 6 months immediately before the application is made. The study must be closely related to the applicant’s nominated occupation.
The applicant pleads two grounds of review in his amended application.

Amended Grounds for Review

Ground 1 complains that the Tribunal failed to invite the applicant to appear before it because it did not properly transmit a fax on 19 March 2014 breaching s.360 (1) of the Migration Act 1958 (Cth).
Ground 2 complains that given the history of communication between 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: [2015] FCCA 2531
Decision Date: 18 September 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, which was refused by the primary decision-maker. This refusal was affirmed on review by the Administrative Appeals Tribunal (AAT). The applicant then sought to challenge the AAT's decision in the Federal Circuit and Family Court of Australia.

The central 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 applicant argued that the AAT had failed to adequately consider certain aspects of his evidence and had applied an incorrect legal test in determining whether he would be subjected to persecution or serious harm if returned to his country of origin. The applicant contended that the AAT's findings were not supported by the evidence before it and that its reasoning was illogical.

Judge Harland found that the AAT had made a jurisdictional error. The Court determined that the AAT had failed to properly engage with the applicant's evidence regarding his fear of persecution, particularly in relation to specific threats he alleged he had received. The AAT's reasoning was found to be deficient in that it did not adequately explain why it discounted certain evidence or how it arrived at its ultimate conclusion that the applicant did not face a real chance of persecution. The Court applied the principles of administrative law, emphasizing the need for tribunals to provide adequate reasons for their decisions and to properly consider all relevant evidence.

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

Orders