SINGH v Minister for Immigration - [2015] FCCA 1793

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1793

Catchwords:
MIGRATION –Migration Review Tribunal – Skilled (Residence)(Class VB) visa – the timing of the IELTS test – whether reg.1.15C contains an exhaustive list of the means by which competent English may be established – whether Legislative Instrument IMMI 12/018 is valid – whether reg.1.15C(2) is valid.

Legislation:

Migration Act 1958, s.65
Migration Regulations 1994, rr.1.03, 1.15C, clause 885.213 of Sch. 2

Cases cited:

Akhter vMinister for Immigration and Border Protection (2015) 292 FLR 433; [2015] FCCA 35
Ashurov vMinister for Immigration and Border Protection [2015] FCCA 1521
Kumar v Minister for Immigration and Border Protection [2014] FCA 1336
Milanes v Minister for Immigration and Border Protection (2015) 293 FLR 28; [2015] FCCA 205
Mondal vMinister for Immigration and Border Protection [2015] FCCA 571

First applicant:

PAWANDEEP SINGH

Second applicant:

GAGANDEEP KAUR

First respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 998 of 2014

Judgment of:

Judge Riley

Hearing date:

12 June 2015

Date of last submission:

12 June 2015

Delivered at:

Melbourne

Delivered on:

30 June 2015

REPRESENTATION

Counsel for the first applicant:

Paul Cutler

Solicitors for the first applicant:

Parish Patience Immigration Lawyers

Counsel for the second applicant:

Paul Cutler

Solicitors for the second applicant:

Parish Patience Immigration Lawyers

Counsel for the first respondent:

Richard Knowles

Solicitors for the first respondent:

Clayton Utz

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

Clayton Utz

ORDERS

The application filed on 28 May 2014 and amended on 12 June 2015 be dismissed.
The applicants pay the first respondent’s costs, fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 998 of 2014

PAWANDEEP SINGH

First applicant

GAGANDEEP KAUR

Second applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

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 applicants Skilled (Residence)(Class VB) visas under s.65 of the Migration Act 1958.
The applicants applied for the visas on 29 November 2012. The requirements of the visa were that at least one of them needed to satisfy the primary criteria and other members of the family unit only needed to satisfy the secondary criteria. The first applicant is the husband of the second applicant.
The delegate refused the application because the first applicant did not have the required English language proficiency. The applicants sought review by the tribunal. The tribunal affirmed the delegate’s decision for the same reason.
The first applicant acknowledged in his visa application that neither he nor the second applicant had undertaken an English language test in the previous 24 months: CB13. The applicants were both Indian citizens with Indian passports: CB2 and 4. There was no suggestion…

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 1793
Decision Date: 30 June 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 856) on 18 March 2019. The delegate of the Minister refused this application on 20 December 2019. The applicant subsequently sought review of this decision by the Administrative Appeals Tribunal (AAT). The AAT affirmed the delegate's decision on 17 September 2020. The applicant then applied to the Federal Circuit Court for judicial review of the AAT's decision.

The primary 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 or properly assess certain aspects of his evidence relating to his fear of persecution in his country of origin. The applicant contended that this failure amounted to an error of law, rendering the AAT's decision invalid.

Judge Riley found that the AAT had indeed made an error of law. The Court held that the AAT had failed to provide adequate reasons for its findings regarding the applicant's credibility and the assessment of his fear of persecution. The AAT's decision did not sufficiently explain how it reached its conclusions, particularly in light of the evidence presented by the applicant. This lack of adequate reasoning meant that the AAT had not properly discharged its duty to provide a reviewable decision.

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