Singh v Minister for Immigration - [2019] FCCA 2679

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ORS v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2679

Catchwords:
MIGRATION – Student visa application – bias – where first applicant completed two courses in hospitality and failed to complete another – where first applicant had worked as production manager for many years – where first applicant enrols in Diploma of Nursing immediately prior to expiry of Graduate Training visa – where Tribunal concludes first applicant is not a genuine applicant for entry and stay in Australia temporarily – where Tribunal undertakes rigorous inquiry – where Tribunal conducts hearing using forthright language – whether Tribunal was entitled to conduct hearing in a robust manner – applicable principles – where Tribunal was not so committed to a conclusion that its mind was incapable of alteration – bias not established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 353, 360, 476

Migration Regulations 1994 (Cth), regs.572.223, 572.322

Cases cited:

ABG16 v Minister for Immigration and Border Protection [2018] FCA 369

ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30

BDS17 v Minister for Immigration and Border Protection [2018] FCA 1683

BKB16 v Minister for Immigration and Border Protection [2017] FCA 1019

Burgess v Minister for Immigration and Border Protection [2018] FCA 69

Ebner v Official Trustee (2000) 205 CLR 337

Jatin v Minister for Immigration and Border Protection [2019] FCA 150

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205

CLR 507

NADH of 2001 v Minister for Immigration and Multicultural and Indigenous

Affairs (2004) 214 ALR 264

Re JRL: Ex parte CJL (1986) 161 CLR 342

Sharma v Minister for Immigration and Border Protection (2017) 256 FCR 1

Singh v Minister for Home Affairs [2018] FCA 1718

SZBLY v Minister for Immigration and Citizenship (2007) 96 ALD 70

SZQHH v Minister for Immigration and Citizenship (2012) 200 FCR 223

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013]

FCAFC 80

Tribunal; Ex parte H (2001) 179 ALR 425

Webb v The Queen (1994) 181 CLR 41

Zaburoni v Minister for Immigration and Border Protection [2017] FCA 654

First Applicant:

BHUPINDER SINGH

Second Applicant:

REKHA PARMAR

Third Applicant:

ARUNDEEP PARMAR

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINSTRATIVE APPEALS TRIBUNAL

File Number:

MLG 298 of 2017

Judgment of:

Judge A Kelly

Hearing date:

17 September 2019

Date of Last Submission:

17 September 2019

Delivered at:

Melbourne

Delivered on:

26 September 2019

REPRESENTATION

Counsel for the Applicant:

Mr A. Aleksov

Solicitors for the Applicant:

Carina Ford Immigration Lawyers

Counsel for the Respondents:

Mr N. Wood

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The amended application dated 19 August 2019 be dismissed.
The applicant pay the costs of the first respondent fixed at $7,467.

FEDERAL CIRCUIT COURT
OF…

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: [2019] FCCA 2679
Decision Date: 26 September 2019

CaseChat Overview and Summary

Singh (the applicant) sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) to affirm the Minister for Immigration's refusal to grant the applicant a student visa. The applicant had previously completed two hospitality courses and failed to complete another, and had a long work history as a production manager. Shortly before the expiry of his Graduate Training visa, he enrolled in a Diploma of Nursing. The Tribunal concluded that the applicant was not a genuine applicant for temporary entry and stay in Australia.

The central legal issue before the Federal Circuit Court was whether the Tribunal had demonstrated actual bias in its conduct of the hearing and its determination of the applicant's case. Specifically, the court was asked to consider whether the Tribunal's "rigorous inquiry" and its use of "forthright language" during the hearing indicated that its mind was closed to persuasion and therefore incapable of alteration, thus establishing bias.

Judge A Kelly found that the Tribunal was entitled to conduct the hearing in a robust manner, consistent with its duty to undertake a rigorous inquiry. The court applied the principles of actual bias, which require a demonstration that the decision-maker was so committed to a conclusion that their mind was incapable of alteration. On the facts, the court was not satisfied that this threshold had been met. The Tribunal's approach, while forthright, did not demonstrate that it had prejudged the case or was unwilling to consider the evidence presented.

The application for judicial review was dismissed.

Orders