SINGH v Minister for Immigration - [2014] FCCA 2070

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2070

Catchwords:
MIGRATION – Review of Migration Review Tribunal – Skilled (Provisional) (Class VC) visa – application for extension of time – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.351, 477, 477(3)(b)

Migration Regulations 1994 (Cth), Sch 2, cls.485.221, 485.224, Sch 4. cl.4020

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Sran v Minister for Immigration and Anor [2014] FCCA 37
SZNYE v Minister for Immigration and Citizenship [2010] FCA 500
Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42
Vu v Minister for Immigration and Citizenship (2008) 101 ALD 454

Applicant:

GURONKAR SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 2006 of 2013

Judgment of:

Judge Hartnett

Hearing date:

3 September 2014

Delivered at:

Melbourne

Delivered on:

24 September 2014

REPRESENTATION

The Applicant:

In Person

Counsel for the respondents:

Mr Rebikoff

Solicitors for the respondents:

Australian Government Solicitor

ORDERS

Pursuant to s.477(2) of the Migration Act 1958 (Cth) the application for an extension of time is not granted.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2006 of 2013

GURONKAR SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

These proceedings commenced upon the Applicant filing an Application on 21 November 2013. In support of that Application, the Applicant filed an Affidavit sworn by him on 21 November 2013.
The Application of 21 November 2013 contained no proper grounds of review of the relevant decision of the Migration Review Tribunal (‘the Tribunal’) dated 30 May 2013. Further, the application appeared to be directed to a review of a decision of the First Respondent. The Applicant noted the name of the decision-maker as Helen Santaltzis and the date of the decision as 15 November 2013. The Applicant claimed, in his grounds of application, to be not satisfied with the “Immigration Decision and Migration Review Tribunal”. He sought that the Court review his file number ADF 2013/20656, which was refused on 15 November 2013. In the supporting Affidavit filed 21 November 2013, the Applicant annexed correspondence to him dated 15 November 2013, signed by Helen Santaltzis, Assistant Director, Ministerial Intervention Victoria, Department of Immigration and Border Protection. That correspondence advised the Applicant of the outcome of his request for ministerial intervention under s.351 of the Migration Act 1958 (Cth) (‘the Act’).
That correspondence provided, in part, as follows:-
“The provisions of the Act that confer personal non-compellable powers on the minister are able to be exercised by any minister appointed as a portfolio minister under section 64 of the Australian Constitution. The Assistant Minister for Immigration and Border Protection is a minister appointed under section 64 of the Constitution and is therefore able to exercise the minister's public interest powers.
The Assistant Minister for…

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: [2014] FCCA 2070
Decision Date: 24 September 2014

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 protection visa. The applicant, who is of Sikh faith and from Punjab, India, claimed to fear persecution by the Indian authorities and by the Khalistan Liberation Force (KLF) due to his alleged involvement with the KLF. The Minister's delegate had refused the protection visa application, finding that the applicant's claims of persecution were not substantiated and that he did not meet the criteria for a protection visa under the Migration Act 1958 (Cth). The applicant subsequently sought review of this decision in the Federal Circuit Court.

The primary legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. This involved determining whether the delegate had properly considered all relevant aspects of the applicant's claims, including his fear of persecution by both state and non-state actors, and whether the delegate's adverse credibility findings were reasonably open on the evidence. The Court also considered whether the delegate had adequately assessed the risk of harm to the applicant should he be returned to India, taking into account the country information available.

Judge Hartnett found that the delegate had made a jurisdictional error by failing to properly consider the applicant's claims regarding persecution by the KLF. The delegate had focused predominantly on the applicant's alleged lack of credibility in relation to his claims of involvement with the KLF, without adequately assessing the risk of harm from that group independently of his alleged involvement. The Court held that the delegate's adverse credibility findings were not reasonably open on the evidence presented, and that the delegate had failed to engage with the country information in a way that supported the conclusion that the applicant would not be at risk. Consequently, the delegate's decision was vitiated by jurisdictional error.

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

Orders