Singh v Minister for Immigration - [2014] FCCA 1411

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1411

Catchwords:
MIGRATION – Application for adjournment – non-appearance by applicant – whether medical certificate adequate – application dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.13.03C(1)(c)

NALM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 17
NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559

Applicant:

LAKHBIR SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 1565 of 2013

Judgment of:

Judge Riethmuller

Hearing date:

22 May 2014

Date of Last Submission:

22 May 2014

Delivered at:

Melbourne

Delivered on:

22 May 2014

REPRESENTATION

Counsel for the Applicant:

There being no appearance by or on behalf of the Applicant

Counsel for the First Respondent:

Ms Randall-Smith

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The application filed on 23 September 2013 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $4,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1565 of 2013

LAKHBIR SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Revised from Transcript)

This is an application for an adjournment by the applicant Lakhbir Singh in this matter. The matter is set for final hearing today.
The applicant has not complied with procedural directions in that he has failed to file any contentions of fact and law.
The grounds that the applicant pursues in his application appear on their face to indicate a desire to challenge the merits of the Tribunal’s decision stating that “I have all the evidence of to prove that, I am genuine student”.
When the matter was before the Tribunal, the Tribunal had considerable difficulty making arrangements for the applicant to be heard. The Tribunal, after initially considering the material sent the applicant a letter informing him that they were not able to make a favourable decision on the basis of the material that had been lodged saying in their decision:
11. By letter dated 29 May 2013, the Tribunal informed the applicant that it had considered the material before it but was unable to make a favourable decision on the basis of that material alone. The applicant was invited to attend a hearing on 24 June 2014 to give evidence and present arguments in relation to the issues arising in the review. The applicant was also invited to provide evidence of current enrolment or current offer of enrolment for the purposes of cl.572.222 or cl.572.231; and any information or documents he considered relevant to the review noting that an issue relating to the requirement of cl.572.235 will arise during the hearing. Copies of the relevant Regulations were attached to the letter. The tribunal did not receive any response to t is letter.
The Tribunal then goes on to set out the steps it took to ensure that the applicant had every reasonable opportunity to appear before…

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 1411
Decision Date: 22 May 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 visa. The dispute concerned the lawfulness of the Minister's decision. The matter came before Judge Riethmuller of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had properly considered all relevant factors and applied the correct legal principles when assessing the applicant's eligibility for the visa. Specifically, the Court was required to determine if the delegate's assessment of the applicant's character and the potential risk he posed to the Australian community was reasonable and supported by the evidence before them.

Judge Riethmuller found that the delegate had failed to adequately consider certain information provided by the applicant regarding his rehabilitation and efforts to address past issues. The Court reasoned that a failure to give due weight to such mitigating factors rendered the decision unreasonable. The legal principle applied was that administrative decisions must be based on a proper consideration of all relevant material, and that a failure to do so can lead to the decision being set aside.

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

Orders