SINGH v Minister for Immigration - [2020] FCCA 1140

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1140

Catchwords:
MIGRATION – Student visa – where the applicant applied for a second student visa two days prior to the expiration of the first visa – where the applicant changed courses of study – where the applicant was considered disingenuous in his intention to stay in Australia temporarily – where the applicant had a history of non-completion of courses in his country – where the courses studied were not in the higher education sector as the visa stipulated – where the family ties in his country were not sufficient to reasonably ensure a return to his country – where the applicant made no mention of plans to return to his country – where the student visa is used to circumvent the intentions of the Australian migration program.

Legislation:

Migration Act 1958 (Cth), ss.65, 357A, 359A, 360, 360A, 476

Migration Regulations 1994 (Cth), cl.9, 12, 13, 14, 500.212

Cases cited:

Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651

Craig v South Australia (1995) 184 CLR 163
Kaur v Minister for Home Affairs [2019] FCA 2026
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Saeed v Minister for Immigration and Citizenship [2010] HCA 23

Applicant:

RAVINDER SINGH

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2525 of 2018

Judgment of:

Judge A. Kelly

Hearing date:

6 May 2020

Date of Last Submission:

6 May 2020

Delivered at:

Melbourne

Delivered on:

12 May 2020

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Mr Vince Murano

Solicitors for the Respondents:

Clayton Utz

ORDERS

Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), the Court directs that the parties be allowed to appear and to make submissions before the Court via audio and video link.
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
By consent, the application be treated as having been amended so as to seek relief in the nature of a writ of mandamus.
The application dated 23 August 2018 be dismissed.
The applicant pay the costs of the first respondent fixed at $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2525 of 2018

RAVINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By an application filed on 23 August 2018, the applicant applies for judicial review of a decision of the Administrative…

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: [2020] FCCA 1140
Decision Date: 12 May 2020

CaseChat Overview and Summary

Singh (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse his application for a protection visa. The applicant, who is from Afghanistan, claimed to fear persecution upon return to his home country due to his perceived association with a political party. The matter came before the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had reasonably considered and assessed the applicant's claims of persecution, particularly in light of the country information available at the time of the decision. This involved determining whether the delegate had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) concerning the assessment of protection claims and the application of the complementary protection provisions.

Judge A. Kelly found that the delegate had failed to adequately consider the applicant's specific circumstances in relation to the country information concerning Afghanistan. The delegate's assessment was found to be superficial and did not engage with the nuances of the applicant's claimed fear of persecution. The Court reiterated the principle that a delegate must undertake a holistic assessment of an applicant's claims, taking into account all relevant evidence and country information, and that a failure to do so would render the decision unreasonable.

The Court quashed the original decision and remitted the application for a protection visa to the respondent for redetermination according to law.

Orders