Singh v Minister for Immigration - [2020] FCCA 1183

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1183

Catchwords:
MIGRATION – Application for Partner visa – whether compelling reasons existed for waiver of Schedule 3 criteria – findings of the Tribunal open on the evidence before it – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), Sch.2, cl. 820.211(2)(d)(ii), Sch.3,

cl. 3001.

Cases cited:

Singh v Minister for Home Affairs (2019) 267 FCR 200.

CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496.

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Singh v Minister for Home Affairs [2020] FCAFC 7.

Applicant:

ANGREJ SINGH

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2262 of 2016

Judgment of:

Judge Egan

Hearing date:

14 May 2020

Date of Last Submission:

14 May 2020

Delivered at:

Brisbane

Delivered on:

15 May 2020

REPRESENTATION

Solicitors for the Applicant:

Mr Warraich, Solicitor of HUK Legal

Counsel for the First Respondent:

Mr Murano

Solicitors for the First Respondent:

Australian Government Solicitor

Second Respondent:

Submitting appearance save as to costs

ORDERS

The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
The Amended Application for review filed on 3 April 2020 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

MLG 2262 of 2016

ANGREJ SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of India. He arrived in Australia on 5 May 2009 as the holder of a Dependent Student visa. That visa was cancelled on 2 August 2011. The applicant’s first wife had completed her studies and returned to India. The parties were divorced. The applicant subsequently remained in Australia as an unlawful non-citizen until he applied for a Partner (Temporary) (Class UK) Subclass 820 visa on 27 March 2014. The basis for his having applied for a Partner visa was his stated relationship with a female sponsor.
On 23 September 2014, the delegate refused to grant the visa on the basis that the applicant did not satisfy cl. 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).
The applicant did not satisfy cl. 3001 of the relevant Schedule 3 criteria because his application for the visa was lodged some two (2) and a half years after the date of cancellation of the Student visa, that being a time well after the requisite twenty-eight (28) day limitation period specified for the making of any application. The delegate did not find that there were any compelling reasons which justified waiving the Schedule 3 criteria.
A subsequent application to the Migration Review Tribunal (‘MRT’)…

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: [2020] FCCA 1183
Decision Date: 15 May 2020

CaseChat Overview and Summary

In *Singh v Minister for Immigration*, the applicant, Mr. Singh, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the Minister's refusal to grant him a Partner visa. The core of the dispute concerned whether compelling reasons existed to waive the Schedule 3 criteria, which Mr. Singh had failed to meet at the time of his visa application.

The Federal Circuit Court was required to determine whether the AAT had erred in law by finding that there were no compelling reasons to waive the Schedule 3 criteria. Specifically, the court considered whether the AAT's findings were reasonably open on the evidence before it, and whether the AAT had properly applied the relevant legislative provisions and policy guidelines concerning the waiver of Schedule 3 requirements in Partner visa applications.

Judge Egan found that the AAT's decision was open on the evidence. The Tribunal had considered the submissions made by Mr. Singh regarding his circumstances, including his financial hardship and the length of his relationship with his sponsor. However, the AAT concluded that these circumstances did not constitute "compelling reasons" as contemplated by the *Migration Regulations 1994* (Cth) for a waiver of the Schedule 3 criteria. The court held that the AAT had applied the correct legal test and that its findings were supported by the evidence presented.

The application for judicial review was dismissed.

Orders