Singh v Minister for Immigration - [2019] FCCA 2106

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2106

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal denied the application natural justice and procedural fairness and was biased in finding that the Tribunal did not have jurisdiction – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.66, 338, 347, 360, 424, 476, 494B, 494C, Part 5

Federal Circuit Court Rules 2001 (Cth), Part 44

Migration Regulations 1994 (Cth), regs.2.55, 4.10

Cases cited:

Applicant:

ROBIN YUVRAJ SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3668 of 2016

Judgment of:

Judge Nicholls

Hearing date:

6 March 2019

Date of Last Submission:

8 May 2019

Delivered at:

Sydney

Delivered on:

5 August 2019

REPRESENTATION

Applicant:

In Person

Representative for the Respondents:

Mr D. Baddeley

Solicitors for the Respondents:

Mills Oakley Lawyers

ORDERS

The application made on 21 December 2016 and amended on 15 February 2019 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3668 of 2016

ROBIN YUVRAJ SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 21 December 2016, and amended on 15 February 2019, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which on 17 November 2016 found that it did not have jurisdiction to review the decision of the Minister’s delegate to refuse the grant of a Student (Temporary) visa to Mr Robin Yuvraj Singh (“the applicant”).
The evidence before the Court is as follows:
(1)A bundle of relevant documents filed, and tendered, by the Minister (the “Court Book” – “CB” – “RE2”).
(2)The affidavit of Ms Sharon Manpreet Sangha, solicitor, affirmed on 22 May 2017.
(3)The affidavit of Ms Sophie Caroline Roberts, solicitor, affirmed on 5 March 2019.
(4)A letter from…

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 2106
Decision Date: 5 August 2019

CaseChat Overview and Summary

This matter concerned an application by Mr. Singh for review of a decision made by the Administrative Appeals Tribunal. The applicant contended that the Tribunal had failed to take into account relevant considerations, specifically his unprecedented circumstances beyond his control, his reliance on his migration agent, his lack of awareness of the correct time limit for lodging a review application, and his financial hardship which prevented him from paying the prescribed fee within the stipulated time. He also argued that he was denied natural justice and procedural fairness because he was not called for a hearing, and that the Tribunal exhibited bias in concluding it lacked jurisdiction.

The central legal issues before the Court were whether the Administrative Appeals Tribunal erred by failing to consider relevant factors, whether it denied the applicant natural justice and procedural fairness by not affording him a hearing, and whether the Tribunal demonstrated bias in its jurisdictional finding. The applicant's grounds for review alleged that his migration agent failed to fulfil her obligations, leading him to become a "victim of the system." He further claimed that his family situation and financial hardship, including his father's legal and medical issues in India, necessitated changes to his study plans and resulted in a loss of parental financial support.

Judge Nicholls found no jurisdictional error. The Court considered the applicant's claims regarding the migration agent's alleged failures and the applicant's financial difficulties. However, the Court determined that these matters did not establish a failure by the Tribunal to take into account relevant considerations or a denial of natural justice. The applicant's assertion of bias was also not substantiated.

The application was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The grounds of the applicant’s amended application before the Court are in the following terms:“1. The applicant claims that in making decision ,the Administrative Appeal Tribunal failed to take account relevant considerations.2. Particulars : In making decision the Tribunal did not account the applicant's unprecedented circumstances which were beyond control . The applicant fully relied on his Representative to forward the applicant's application for review to the AAT. He was not aware that the time limit for review application is only 21 days not 28 days . The Migration Agent did not tell about the limit of time in filing application for review . He was told by the Migration Agent very late . He did not receive any call from the Migration Agent . He was also having financial hardship and he could not arrange prescribed fee of $1673 within time limit .3. The applicant's representative could not fulfill her obligation and he became victim of the system The applicant claims that because of his unprecedented family situation and reasons of financial hardship the applicant changed the study courses . The applicant lost financial support from his parents because of some legal problems occurred in India . He could not afford to continue his previous course of study because of high course fees. He wanted to study in a course where he could achieve the better result with a good prospect of employment in India .4. The applicant claims that he was denied natural justice and procedural fairness when he was not called for hearing. (Section 424 of the Migration Act) by the Tribunal. The Tribunal was biased when it concluded that the Tribunal does not have jurisdiction in this matter . 5. Particulars : The applicant wanted to tell the Tribunal about the circumstances occurred during the time of study and delay in lodging application for review but the Tribunal did not give chance to appear before the Tribunal and made decision . The applicant claims that the Tribunal in making decision did not realise that how the decision will affect the whole life . The applicant claims that he was denied natural justice when the Tribunal did not accept his application fr review and said that the Tribunal has no jurisdiction.6. In his affidavit to the Court, the applicant explained the reasons why he did not pay the fee and continue the study . His father was in a serious legal and medical condition. Financial help from him was completely stopped .He forwarded all the reasons for his fainacial hardship to the Migration Agent but she faild to forward to the Department about the applicant's details about his father's medical condition and evidence of support .7. The applicant did not get chance to appear before the Tribunal and he did not get the chance to tell the Tribunal about the unprecedented circumstances occurred in his family in India which were beyond his control .”[Errors in the original.] On 6 July 2017 a Registrar of the Court made various orders for the conduct of this case. The application was set down for a show cause hearing pursuant to Part 44 of the Federal Circuit Court Rules 2001 (Cth).