Singh v Minister for Immigration - [2015] FCCA 1939

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1939

Catchwords:
MIGRATION – Application to review decision of Migration Review Tribunal (now the Administrative Appeals Tribunal) – whether the Tribunal misconstrued and misapplied the law.

Legislation:

Migration Act 1958 (Cth), ss.5(9), 65, 359A, 368
Migration Regulations 1994 (Cth), cl.485.221 of Sch.2, cl.485.224 of Sch.2, cl.886.223 of Sch.2, PIC 4020 of Sch.4

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184
Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58
Islam v Minister for Immigration & Anor [2010] FMCA 379
Kabir v Minister for Immigration and Citizenship & Anor (2010) 118 ALD 513; [2010] FCA 1164

Kaur v Minister for Immigration and Border Protection [2014] FCA 281

Applicant:

GURJIT SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2339 of 2013

Judgment of:

Judge Barnes

Hearing date:

28 October 2014

Delivered at:

Sydney

Delivered on:

22 July 2015

REPRESENTATION

Counsel for the Applicant:

Mr Nair

Counsel for the Respondents:

Mr Knowles

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
A writ of certiorari issue directed to the Second Respondent to quash the decision made on 28 August 2013.
A writ of mandamus issue directed to the Second Respondent requiring the Second Respondent to redetermine according to law the application for review of the decision of the delegate of the First Respondent of 10 July 2012 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2339 of 2013

GURJIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Migration Review Tribunal (now the Administrative Appeals…

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: [2015] FCCA 1939
Decision Date: 22 July 2015

CaseChat Overview and Summary

This matter came before Judge Barnes concerning an application for judicial review by Mr. Singh against the Minister for Immigration. The dispute centred on the Administrative Appeals Tribunal's decision to affirm the refusal of Mr. Singh's visa application. Mr. Singh contended that the Tribunal committed jurisdictional error by failing to consider material facts that were relevant to the determinative issue before it.

The primary legal issue before the Court was whether the Tribunal had ignored relevant considerations, thereby committing jurisdictional error. Specifically, Mr. Singh argued that the Tribunal failed to take into account accepted facts regarding the size and operational demands of the restaurant where he claimed to have worked, and the presence of only one other kitchen staff member. These facts, Mr. Singh submitted, were material to assessing whether he could have performed the full range of duties described in his employment reference, which was the central question for the Tribunal.

Judge Barnes reasoned that the Tribunal's acceptance of evidence concerning the restaurant's capacity (100-150 patrons), its catering operations (500-600 persons), and the limited kitchen staff (one other person doing dishes) was clearly material to the determinative issue. The Court found that the question of whether a single chef could manage all cooking functions for such a business, especially given Mr. Singh's own role in washing dishes, was a relevant consideration that arose directly from the accepted facts. The absence of any reference to or findings on these matters in the Tribunal's reasons suggested, by inference, that the Tribunal had not considered them. This failure to have regard to material considerations, akin to the error described in *Craig v State of South Australia*, constituted jurisdictional error. The Court also noted that amendments to the Migration Regulations concerning criteria for the Graduate Work stream, including the requirement to satisfy Public Interest Criterion 4020, were introduced after the delegate's decision and did not apply to the Tribunal's review.

The Court found that the Tribunal had made a jurisdictional error by failing to consider relevant material. Consequently, the decision of the Administrative Appeals Tribunal was set aside.

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

Counsel for the First Respondent provided the Court with supplementary submissions and copies of the applicable Migration Regulations after the hearing. It was clarified that under the version of Part 485 of Sch.2 to the Migration Regulations applicable as at 10 July 2012 (the date of the delegate’s decision), cl.485.224(a) (set out at [10] above) required the Applicant to satisfy, inter alia, PIC 4020. It was as follows:485.22 Criteria to be satisfied at time of decision…485.224The applicant:(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020; and(b) if the applicant had turned 18 at the time of application – satisfies public interest criterion 4019. This requirement was introduced by reg.5 and Item 3 of the Migration Amendment Regulations 2011 (No. 1) (Cth) and applied to visa applications made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958 (Cth) (the “Act”)), before 2 April 2011 and to visa applications made on or after 2 April 2011. It is not in dispute that this version of Part 485 therefore applied to the Tribunal’s consideration of the Applicant’s visa application. In addition, in the applicable version of the Migration Regulations, cl.485.221(1) (which was not referred to by the delegate or the Tribunal) imposed a time of decision criterion that the skills of the applicant for the applicant’s nominated skilled occupation had been assessed by the relevant assessing authority as suitable for that occupation. The Applicant lodged his application for review by the Tribunal on 12 July 2012. The Tribunal decision was not made until 28 August 2013. In the interim, a further amendment to Part 485 of Sch.2 to the Migration Regulations was introduced by reg.4 and Schedule 2 (Item 9) of the Migration Legislation Amendment Regulation 2013 (No. 1) (Cth). By these amendments, Part 485 adopted a new format, in which the previous “time of application” and “time of decision” criteria were replaced with primary criteria, including a requirement (in new cl.485.216) that the applicant satisfy public interest criteria including PIC 4020. New cl.485.224 was as follows:485.22 Criteria for Graduate Work stream…485.224(1) The skills of the applicant for the applicant’s nominated skilled occupation have been assessed by a relevant assessing authority as suitable for that occupation.(2) If the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a visa, the qualification was obtained as a result of studying a registered course. Thus, while new cl.485.224(1) imposed a requirement that the skills of the applicant for the applicant’s nominated skilled occupation had been assessed by a relevant assessing authority as suitable for that occupation, the requirement to satisfy PIC 4020 was in new cl.485.216(1). The Tribunal did not refer to cl.485.216. Moreover, these amendments applied only to visa applications made on or after 23 March 2013 (see Schedule 6 to Item 1) and hence did not apply to the Tribunal’s consideration of the Applicant’s visa application.

Ratio Decidendi

Legal Principle Established

Ground Five in the Amended Application is that:The Tribunal ignored relevant material which affected its purported exercise of jurisdiction. The Tribunal failed to take into account relevant considerations.Particulars:(i) The determinative issue for the Tribunal was whether the applicant performed the range of duties described in the employment reference. (ii) The Tribunal accepted that the restaurant was “a busy place”, that it seated between 100 to 150 persons, that the restaurant also operated a catering business, catering for 500 to 600 persons and that there was another person there “doing dishes”.(iii) This evidence were (sic) clearly material to the determinative issue before the Tribunal. The issue of whether one chef could perform all the cooking functions needed for the size and type of business described (and accepted by the Tribunal) clearly arises on these facts.(iv) It is clear that the Tribunal did not take these facts (or considerations) into account when deciding the determinative issue. This is jurisdictional error. The Applicant submitted that it was clear from the Tribunal's statement of reasons that it accepted his evidence as to the name of the chef of the Copper Tiffin Restaurant, his evidence that such person was the only chef there, and also that the chef was at the restaurant whenever the Applicant worked. It was also said to be clear that the Tribunal accepted the Applicant's evidence that the restaurant could seat between 100 and 150 patrons and had a catering business catering for 500 to 600 people at functions. The Applicant had also, through his adviser, suggested that Copper Tiffin Restaurant was a busy place and was involved in a catering business. It was further submitted that the Applicant had claimed, and that the Tribunal had accepted, that there was only one other person working in the kitchen and that the Applicant “also did dishes” with this person. The Applicant submitted that as the determinative issue for the Tribunal was whether the Applicant had performed the range of duties described in the employment reference, these facts that the Tribunal had accepted were clearly material to this determination. In particular, it was contended that the issue of whether one chef could perform all the cooking functions needed for the style and type of the business described (and accepted by the Tribunal) clearly arose on such facts so that such material was capable of affecting the determination of the Tribunal. Hence, it was submitted that the Tribunal ought to have had regard to such facts as relevant or material considerations. It was submitted that the circumstances in which the Applicant carried out his duties were clearly relevant to what he may have been required to do. The Applicant submitted that in light of s.368 of the Act it was to be inferred from the absence of reference to or findings with respect to these particular matters or in relation to the circumstances in which the Applicant carried out his duties that the Tribunal did not consider such matters to be material. It was submitted that in basing its determination only on what was said to be the stark contrast between the Applicant's evidence as to his role and the certification, which describe a full range of cooking functions, the Tribunal had fallen into error in the manner discussed in Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 at [14] in that it ignored material that was clearly relevant to its determination.