Singh v Minister for Immigration - [2015] FCCA 1173

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1173

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of skilled visas – English language test result found to be a “bogus document” – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth)

Rani & Anor v the Minister for Immigration [2015] FCCA 455

First Applicant:

TARSEM SINGH

Second Applicant:

HARJINDER KAUR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 240 of 2014

Judgment of:

Judge Driver

Hearing date:

5 May 2015

Date of Last Submission:

5 May 2015

Delivered at:

Adelaide

Delivered on:

5 May 2015

REPRESENTATION

The Applicants:

In person

Solicitors for the Respondents:

Ms C Stokes for the Australian Government Solicitors

ORDERS

The application filed on 1 July 2014 be dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).
The Applicants do forthwith pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 240 of 2014

TARSEM SINGH

First Applicant

HARJINDER KAUR

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Reasons settled from transcript)

This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”). The decision was made on 6 June 2014. The Tribunal affirmed a decision of a Delegate of the Minister not to grant the Applicants Skilled Provisional Class VC visas. There are two Applicants who are husband and wife. The principal Applicant is the Applicant husband. Background facts relating to this matter are conveniently set out in the Minister’s Outline of Legal Submissions filed on 29 April 2015.

Background

The First Applicant (the Applicant), an Indian National, applied for the visa on 27 June 2011.[1] The Applicant was required to have competent English to be eligible for the grant of the visa: see Sch.2, cl.485.215, of the Migration Regulations 1994 (Cth) (the Regulations). He was also required to satisfy public interest criterion (PIC) 4020,[2] which was in the following terms:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal…a bogus document …in relation to:
(a) the application for the visa;…
[1] Court book (CB) 5-36.
[2] See cl.485.224(a) of Sch 2 to the Regulations.
The term ‘bogus document’ is relevantly defined in s.97 of the Act to mean a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; …
In support of the visa application, the Applicant provided an ‘IELTS Test Report’ Form (

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 1173
Decision Date: 5 May 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, which was refused by the primary decision-maker. This refusal was affirmed on review by the Administrative Appeals Tribunal (AAT). The applicant then sought to challenge the AAT's decision in the Federal Circuit and Family Court of Australia.

The central 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 Driver found that the AAT had, in fact, considered all the evidence before it and had provided adequate reasons for its findings. The Court applied the principles of administrative law, including the requirement for tribunals to provide sufficient reasons for their decisions and to engage with the evidence presented. The Court determined that the AAT's assessment of the applicant's claims, while perhaps not to the applicant's satisfaction, did not disclose an error of law.

The application for judicial review was dismissed.

Orders