SINGH v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 845

Catchwords:
MIGRATION – Judicial review of decision of Migration Review Tribunal – no jurisdictional error established – no matter of principle.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), cl.485.224 of Schedule 2

Applicant:

VARINDER SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 248 of 2013

Judgment of:

Judge Simpson

Hearing date:

15 April 2014

Date of Last Submission:

15 April 2014

Delivered at:

Adelaide

Delivered on:

15 April 2014

REPRESENTATION

The Applicant:

In person

Counsel for the Respondents:

Mr K Tredrea

Solicitors for the Respondents:

Sparke Helmore Lawyers

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 rule 44.12 of Federal Circuit Court Rules 2001 (Cth).
The applicant do pay the first respondent its costs fixed in the amount of THREE THOUSAND, THREE HUNDRED AND TWENTY SIX DOLLARS ($3,326.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 248 of 2013

VARINDER 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 in which the applicant seeks that a decision of the Migration Review Tribunal be quashed. The grounds of the application are as follows, and I read these verbatim:
“The decision made by tribunal officer, they said the ILETS document which is given by me was bogus. They said am not sat on that test but I still claim I sat on that test. I did not did anything wrong with that document. I received that certificate by post in some time period when I gave that test.”
The applicant appears in person today. He is of Indian origin and speaks, I think it is fair to say, good English. He has not needed the use of an interpreter.
I have given the applicant the opportunity to put his submissions. The submissions that he put go no further than are revealed by the grounds of the application.
The applicant seeks that the Court give him “one last chance” at trying to get a visa. It was pointed out to the applicant that the Court has as its role to decide whether the Tribunal made a jurisdictional error. To the extent that I have been able to do so, I have explained to the applicant what is needed for him to succeed in this Court.
The brief background to the matter is that the applicant is a citizen of India who applied for a Skilled (Provisional) (Class VC) Subclass (Skilled Graduate) 485 visa on 24 June 2011.
On 13 January 2012, a delegate of the Minister refused to grant the applicant a visa. The decision record is set out in the Department’s letter to the applicant dated 13 January 2012. The applicant then applied for a review of the decision by filing an Application for Review with the Migration Review Tribunal on 23 January 2012.
On 18 July 2013, the review to the Tribunal was dismissed. The Tribunal affirmed the decision not to grant the applicant a visa.
On 15 August 2013, the applicant filed an application in this Court seeking an order that the Tribunal’s decision be dismissed.
The Tribunal’s decision was made upon the basis that the applicant had failed to satisfy the mandatory requirements for Public Interest Criteria “PIC” 4020, namely, that the applicant had submitted a bogus English Language Test “IELTS”.
I note that cl.485.224 of Schedule 2 to the Migration Regulations 1994 (Cth) requires that an applicant for a visa meet the requirements of PIC 4020. Secondly, I note that PIC 4020 requires, insofar as is relevant in this case, that there shall be no evidence that the applicant has given a bogus document or information that is false or misleading in a material respect in relation to the application for a visa. Finally, the IELTS submitted by the applicant, in support of his application for a visa, was shown to be a bogus document. As a result the applicant did not meet the requirements of PIC 4020(1).
The Tribunal relied upon certain evidence that was put before it in the form of a Document Examination Report. In its reasons, the Tribunal had this to say about that process:
“Following the Tribunal hearing, the applicant provided to the Tribunal the original of his disputed IELTS test report. The Tribunal then referred the applicant’s original IELTS test report to be examined by an independent document examiner within the Department. On 31 May 2013, the Tribunal received the relevant document examination report. As then put to the applicant under the Tribunal’s subsequent section 359A letter, the document examiner concluded that the applicant’s IELTS test report “has been fraudulently altered”, based on several irregularities in the photographic image in the report.
On 10 July 2013, the applicant responded to the Tribunal’s section 359A letter, in which he reiterated his claim that he sat the relevant IELTS test and he refuted the finding of the document examiner that it had been fraudulently altered. The applicant stated that he has no capability or capacity to prove otherwise.”
The crucial finding that was made by the Tribunal in relation to this matter is to be found in paragraph 18 of its reasons. The Tribunal had this to say:
“The Tribunal is therefore not satisfied that there is no evidence before it that the applicant has given or caused to be given to the Minister or an officer a bogus document in relation to the application for the visa. It follows that the applicant does not meet the requirements of PIC 4020(1).”
This finding was open to the Tribunal to make. There was evidence there that supported such a finding. This finding is critical to the determination of the application before me.
The applicant has not directed the Court to any jurisdictional error or, for that matter, any error at all by the Tribunal.
This matter comes before me as a show cause hearing. On the basis of the view that I have formed that the applicant has not raised an arguable case, the only appropriate course for me to take is for me to make an order that the application be dismissed.
I make the orders to be found at the beginning of these reasons.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate:

Date: 29 April 2014

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 applicant, who is from Afghanistan, claimed to fear persecution upon return to his home country due to his perceived association with a political party that opposed the Taliban. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that he did not hold a well-founded fear of persecution. The applicant then sought review of this decision in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate had failed to properly consider the applicant's claims of persecution, particularly in light of the country information available regarding the situation in Afghanistan. The applicant argued that the delegate had overlooked or undervalued crucial aspects of his evidence and the country information, leading to an unreasonable and illogical conclusion.

In her reasoning, Judge Simpson applied the principles of administrative law, focusing on the standard of review for decisions made under the *Migration Act 1958* (Cth). Her Honour considered the evidence presented by the applicant, the country information relied upon by the delegate, and the delegate's written reasons for decision. The Court found that the delegate had failed to adequately engage with the applicant's specific claims regarding his fear of persecution and had not properly considered the implications of the country information in relation to those claims. This failure amounted to a failure to exercise the jurisdiction conferred upon the delegate, constituting jurisdictional error.

Consequently, the Court ordered that the decision of the delegate be set aside and remitted to the Minister for reconsideration 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