SINGH v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1061

Catchwords:
MIGRATION – Judicial review of decision of Migration Review Tribunal – application dismissed as applicant fails to appear.

Legislation:

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

Migration Act 1958 (Cth)

Applicant:

JASPREET SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 270 of 2013

Judgment of:

Judge Simpson

Hearing date:

23 April 2014

Date of Last Submission:

23 April 2014

Delivered at:

Adelaide

Delivered on:

23 April 2014

REPRESENTATION

The Applicant:

No appearance

Counsel for the Respondents:

Ms C Deegan

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

The name of the first respondent be changed from Minister for Immigration and Citizenship to Minister for Immigration and Border Protection.
The application is dismissed pursuant to r.13.03C of the Federal Circuit Court Rules 2001 (Cth).
The applicant do pay the first respondent’s costs fixed in the sum of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 270 of 2013

JASPREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(settled ex-tempore reasons)

I have before me an application for judicial review of a decision of the second respondent, that is the Migration Review Tribunal, not to grant the applicant a Skilled (Provisional) (Class VC) subclass 485 (Skilled-Graduate) visa.
On 16 October 2013 the matter came before Registrar Bochner and she made various orders, including an order that the matter be listed for hearing on 16 April 2014 at 2.15pm. The applicant appeared in person before Registrar Bochner. Various other orders were made that are not relevant for the purpose of these reasons.
Shortly prior to the date that it was set for the hearing, the applicant sent a certificate of sickness, signed by a Dr Kerry, to the Court stating that the applicant had lumbar muscle strain, that he would be unfit for work for 14, 15 and 16 April 2014 but that he should be able to resume work on 17 April 2014.
The applicant also sent a letter to the Court, undated but stamped 14 April 2014, in which he said:
“I am sick and have attached my medical certificate with this letter. I’m not in condition to appear for hearing and give oral submission related to my case. I request that you postpone hearing date and make it after April so I can recover from sickness and present my argument and oral submission in court.
Thank you for your valuable time. God bless.”
On 16 April 2014, the matter was called on in Court and the applicant appeared by telephone. I indicated to the applicant that I would grant him an adjournment for a short period. I indicated that the Court would be able to deal with the matter on 23 April 2014 at 2.15pm. The applicant agreed that he would be available to come to Court on that day and that he would be ready to put any submissions. A copy of the Court order was posted to the applicant at his address at 21 Tenth Avenue, St Peters on the day that the order was ordered (ie 16 April 2014).
The matter was called on for hearing at 2.15pm today, being 23 April 2014. It is now a little after 2.30pm. His name has been called three times. He does not appear.
I have had my associate attempt to contact the applicant by telephone so that he could appear but there has been no response to the telephone call.
The applicant clearly knows that the matter is listed for hearing today. Since he does not appear I consider the appropriate course is to dismiss the application pursuant to r.13.03C of the Federal Circuit Court Rules 2001 (Cth).
I make a further order that the applicant pay the first respondent its costs fixed in the sum of $6,646.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate:

Date: 23 May 2014

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 (Class 856) on 18 March 2019. The delegate of the Minister refused this application on 19 December 2019. The applicant then sought review of this decision by the Administrative Appeals Tribunal (AAT). The AAT affirmed the delegate's decision on 23 September 2020. The applicant subsequently filed an application for judicial review in the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the AAT had erred in law in its decision to affirm the refusal of the Protection Visa. Specifically, the applicant contended that the AAT had failed to adequately consider or properly assess certain evidence relating to his claims of persecution. This included allegations of past persecution and a fear of future persecution should he be returned to his country of origin. The applicant argued that the AAT's findings on these matters were not supported by the evidence before it and that the Tribunal had applied an incorrect legal standard in its assessment.

Judge Simpson found that the AAT had indeed made an error of law. The Court held that the AAT had failed to properly engage with the entirety of the evidence presented by the applicant, particularly concerning the specific nature and extent of the alleged persecution. The Tribunal's reasoning was found to be deficient in its analysis of the applicant's subjective fear and its connection to objective country information. The Court reiterated the principle that a decision-maker must consider all relevant evidence and provide reasons that demonstrate a proper understanding and application of the law to the facts as found.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established