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Singh v Minister for Immigration

Singh v Minister for Immigration

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Case Copied 27 August 2019 46 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2337

Catchwords:
MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Partner visa – application to amend grounds of review.

PRACTICE AND PROCEDURE – Application to amend grounds of review – consideration of factors in relation to proposed amendments – length of and explanation for delay and reason for amendments – nature and merit of the proposed amendments.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.7.01, 7.03

Federal Circuit Court of Australia Act 1999 (Cth), s.75

Migration Act 1958 (Cth), ss.48, 65, 476

Migration Regulations (Amendment) 1996 (Cth)
Migration Regulations 1994 (Cth), sch.2, cl.820.211(2)(d)(ii), sch.3, criteria 3001, 3003, 3004

Cases cited:

ABX15 v Minister for Immigration & Anor [2015] FCCA 3003
ADN15 v Minister for Immigration & Border Protection [2016] FCA 810

Aon Risk Services Australia Ltd v Australian National University [2009] HCA

27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14

Babicci v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 77; (2005) 141 FCR 285

BYM16 v Minister for Immigration & Anor [2017] FCCA 2445

BYM16 v Minister for Immigration & Border Protection [2018] FCA 326

Cai v Tiy Loy & Co Ltd (No 2) [2015] FCCA 2924

CEPU (Western Australia Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1
Drake v Minister for Immigration & Ethic Affairs (1979) 46 FLR 409; (1979) 24 ALR 577; (1979) 2 ALD 60
El Ess & Anor v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2004] FCA 1038; (2004) 142 FCR 43

Fair Work Ombudsman v Nerd Group Australia Pty Ltd [2010] FMCA 569; (2010) 197 IR 431

Gallo v Dawson (1990) 64 ALJR 458; (1990) 93 ALR 479

Krajniw v Hunt [2017] FCA 483

Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424

Medich v Bentley-Smythe Pty Ltd [2010] FCA 494

Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583
MZYPZ v Minister for Immigration & Citizenship [2012] FCA 478; (2012) 127 ALD 510
MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203

MZZZL v Minister for Immigration & Anor [2014] FCCA 1309

Pietrobon v BMD Constructions Pty Ltd & Ors [2017]…

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 2337
Decision Date: 27 August 2019 ((by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))

CaseChat Overview and Summary

Singh (the applicant) sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) concerning his partner visa application. The Minister for Immigration (the respondent) was the opposing party. The dispute centred on the applicant's attempt to amend the grounds of his judicial review application after the initial filing.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the applicant should be permitted to amend his grounds of review. This required the Court to consider the relevant factors for granting such an amendment, specifically in the context of migration law and judicial review proceedings.

Judge Lucev applied the principles governing amendments to pleadings, considering the length of and explanation for the delay in seeking the amendments, as well as the nature and merit of the proposed new grounds. The Court weighed these factors against the potential prejudice to the respondent and the overall interests of justice. The Court ultimately found that the proposed amendments lacked sufficient merit and that permitting them would cause undue delay and prejudice.

The Court therefore dismissed the application to amend the grounds of review.

Orders