Singh v Minister for Immigration - [2015] FCCA 1714

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1714

Catchwords:
MIGRATION – Judicial review – Migration Review Tribunal – Skilled (Provisional) (Class VC) visa – application to Migration Review Tribunal out of prescribed time – whether Migration Review Tribunal had jurisdiction to hear review application – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.66(1), 347, 348, 474, 494B(5), 494C(5), 494D(1)
Migration Regulations 1994 (Cth), regs.2.16(3), 4.10(1)(a), 4.13(4)

Cheng v Minister for Immigration & Citizenship [2011] FCA 1290; (2011) 198 FCR 559
Gurung & Anor v Minister for Immigration & Anor [2013] FCCA 628
Hu v Minister for Immigration & Anor [2014] FCCA 312
Kankaew v Minister for Immigration & Anor [2014] FCCA 2335
Minister for Immigration & Citizenshipv SZLIX [2008] FCAFC 17; (2008) 245 ALR 501; (2008) 100 ALD 443
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510

First Applicant:

TARLOCHAN SINGH

Second Applicant:

NEELAM NEELAM

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

PEG 173 of 2014

Judgment of:

Judge Antoni Lucev

Hearing date:

23 June 2015

Date of Last Submission:

23 June 2015

Delivered at:

Perth

Delivered on:

23 June 2015

REPRESENTATION

For the First Applicant:

In person

For the Second Applicant:

In person

Counsel for the First Respondent:

Mr P Corbould

For the Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

That the application be dismissed.
That the applicants pay the first respondent’s costs in the sum of $6825 by 23 September 2015.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 173 of 2014

TARLOCHAN SINGH

First Applicant

NEELAM NEELAM

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extemporaneously and later edited)

Introduction

The first applicant (“Mr Singh”), and the second applicant (“Ms Neelam”) commenced this proceeding on 11 June 2014 by filing an application (“Judicial Review Application”) seeking review under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the Migration Review Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision, made on 9 May 2014, is at Court Book 110-111. The Court Book (“CB”) containing relevant papers, including the Tribunal Decision, was marked as Exhibit 1. The Tribunal Decision affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the First Respondent (“Minister”) to refuse Mr Singh and Ms Neelam Skilled (Provisional) (Class VC) visas (“Skilled Visas”). The Delegate’s Decision, made on 12 November 2013, is at CB 37-41.

Tribunal Decision

The Tribunal Decision, made on 9 May 2014 and which sets out the facts relevant to the issue to be determined, is as follows:
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.An application has been…

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 1714
Decision Date: 23 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 was a citizen of India and had applied for a partner visa (subclass 820) on the basis of his relationship with an Australian citizen. The Minister's decision was made under s 501(1) of the *Migration Act 1958* (Cth), which allows for the refusal or cancellation of a visa if the Minister is satisfied that the person does not pass the character test. The applicant had a criminal record in Australia, including convictions for assault and drug offences. The Administrative Appeals Tribunal (AAT) had previously affirmed the Minister's decision. The matter came before Judge Antoni Lucev in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa on character grounds was affected by jurisdictional error. Specifically, the Court was asked to consider whether the Minister had failed to properly consider the applicant's personal circumstances and the best interests of his Australian citizen partner, as required by the *Migration Act* and relevant policy guidelines. The applicant argued that the Minister had placed undue weight on his criminal history without adequately balancing it against other relevant factors, such as his rehabilitation and the impact of the refusal on his partner.

Judge Lucev found that the Minister's delegate had failed to undertake a proper balancing exercise as required by s 501(1) of the *Migration Act*. The delegate had focused predominantly on the applicant's criminal record and the risk he posed to the Australian community, without giving sufficient weight to the mitigating factors presented, including the applicant's efforts at rehabilitation and the significant impact a visa refusal would have on his Australian partner. The Court held that a failure to properly weigh all relevant considerations constituted jurisdictional error.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders