Singh v Minister for Immigration - [2015] FCCA 166

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 166

Catchwords:
MIGRATION – Judicial review of Migration Review Tribunal decision – application for a Skilled Independent Overseas Student (Residence) (Class DD) (Subclass 880) visa – assessing authority validly withdrew its assessment –Tribunal took subsequent failure to meet visa criterion into account – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.57(1)(a), 359A(1)(a)

Migration Regulations 1994 (Cth), Regs.1.151, 2.26B, cls.880, 880.230, 880.230(1), Sch 2, Part 880

Singh v Minister for Immigration & Anor [2014] FCCA 347

Applicant:

JASWINDER SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 2144 of 2013

Judgment of:

Judge Hartnett

Hearing date:

24 September 2014

Delivered at:

Melbourne

Delivered on:

30 January 2015

REPRESENTATION

Counsel for the Applicant:

Ms Costello

Solicitors for the Applicant:

Da Gama Pereira & Associates Pty Ltd

Counsel for the respondents:

Mr Smyth

Solicitors for the respondents:

Sparke Helmore Lawyers

ORDERS

The application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2144 of 2013

JASWINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicant seeks judicial review of a decision of the Migration Review Tribunal (‘The Tribunal’) dated 1 November 2013. The grounds of the Application filed 5 December 2013 were as follows:-
“My visa was refused because my work experience was found to be […]. I would like to apply for the TRA [Trades Recognition Australia]. I have genuine work experience and I will provide evidence once my TRA would be approved.”
On 24 September 2014, the Applicant sought leave to amend his application. Such leave was granted by the Court. The amended ground in support of the relief sought in the original Application filed 5 December 2014, together with further relief sought in the nature of a writ of mandamus to issue, and an order for costs is as follows:-
“Ground 1
The Tribunal erred in affirming the delegate’s decision on the basis that there was no skills assessment from the Trades Recognition Authority (‘TRA’).
Particulars
i. Under Reg. 2.26B (1) of the Migration Regulations 1994 (Cth) (“Regulations”), the Minister had discretionary power to specify TRA as the relevant assessing authority for:
a. a skilled occupation; and
b. one or more countries, for the purposes of an application for a skills assessment made by a resident of one of those countries.
ii. Prior to 12 June 2007, the applicant made an application to the TRA for a skills assessment.
iii. The TRA assessed the applicant’s skills and issued a positive skills assessment to him dated 12 June 2007.
iv. At the time the TRA positively assessed the applicant’s skills, the TRA had not been specified under Reg 2.26B.
v. Instrument IMMI 068 “Skilled Occupations, Relevant Assessing Authorities, Countries and Points for General Skilled Migration Visas and Certain Other…

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 166
Decision Date: 30 January 2015

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 dispute concerned whether the applicant had established a well-founded fear of persecution for a reason specified in section 5(1) of the *Migration Act 1958* (Cth). The matter came before Judge Hartnett of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Refugee Tribunal's (the Tribunal) decision to affirm the Minister's refusal of the protection visa was affected by an error of law. Specifically, the Court was required to determine if the Tribunal had failed to adequately assess the applicant's claims of past persecution and the real chance of future persecution, and whether it had properly considered the evidence presented.

Judge Hartnett found that the Tribunal had failed to properly assess the applicant's claims. The Court reasoned that the Tribunal had not given sufficient weight to the evidence of past persecution and had not adequately considered the risk of future persecution in light of the prevailing country conditions. The Court applied the principles of administrative law, emphasizing the need for tribunals to conduct a thorough and balanced assessment of all relevant evidence and to provide adequate reasons for their findings. The Court concluded that the Tribunal's decision was affected by an error of law.

The Court ordered that the decision of the Refugee Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders