Singh v Minister for Immigration - [2019] FCCA 2343

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2343

Catchwords:
MIGRATION – Skilled Graduate (Temporary) (Class VC) visa – decision of Administrative Appeals Tribunal – whether Tribunal failed to afford natural justice – whether applicant had provided “information” – no jurisdictional error – application dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s.2A

Migration Act 1958 (Cth), ss.65, 358, 359, 359A, 359B, 359C, 360, 363, 379C, 476

Migration Regulations 1994 (Cth), reg.4.17, cll.485.221, 485.224 of sch.2

Cases cited:

Singh v Minister for Immigration & Border Protection [2017] FCAFC 105

SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Applicant:

SURENDER PAL SINGH

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 365 of 2018

Judgment of:

Judge Kendall

Hearing dates:

27 May 2019 and 19 August 2019

Date of Last Submission:

19 August 2019

Delivered at:

Perth

Delivered on:

20 August 2019

REPRESENTATION

Applicant:

In person

Counsel for the First Respondent:

Ms S J Oliver

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The name of the first respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 365 of 2018

SURENDER PAL SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex-Tempore; Revised from Transcript)

By application filed in this Court on 4 July 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 25 June 2018.
The Tribunal affirmed a decision of a delegate of the now Minister for Home Affairs (the “Minister”) not to grant the applicant a Skilled Graduate (Temporary) (Class VC) visa (the “visa”).
The applicant now seeks judicial review of the Tribunal’s decision. This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Tribunal.

Factual background

The…

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 2343
Decision Date: 20 August 2019

CaseChat Overview and Summary

Singh (the applicant) sought judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal) concerning his application for a Skilled Graduate (Temporary) (Class VC) visa. The Minister for Immigration was the respondent. The applicant contended that the Tribunal had failed to afford him natural justice in its consideration of his visa application.

The central legal issue before the Federal Court was whether the Tribunal had committed a jurisdictional error by failing to afford the applicant procedural fairness. This involved determining whether the applicant had provided "information" to the Tribunal in a manner that required its consideration, and if not, whether the Tribunal's subsequent actions constituted a breach of its duty to act fairly.

Justice Kendall found that the applicant had not provided the necessary "information" to the Tribunal in a way that would trigger a procedural fairness obligation beyond what had already occurred. The Tribunal had considered the material before it, and the applicant had been given an opportunity to present his case. Consequently, the Court concluded that no jurisdictional error had been made by the Tribunal.

The application for judicial review was therefore dismissed.

Orders