Singh v Minister for Immigration - [2019] FCCA 335

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 335

Catchwords:
MIGRATION – Application seeking review of a decision of the Administrative Appeals Tribunal – whether there was jurisdictional error in applying the Schedule 3 criteria – whether there were compelling reasons to not apply the Schedule 3 criteria – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations1994 (Cth), Sch. 2 cl.820.211(2)(d)(ii), Sch. 3 item 3001

Cases cited:

An v Minister for Immigration and Citizenship [2007] FCAFC 97; (2007)

160 FCR 480

Gurung v Minister for Immigration & Anor [2018] FCCA 1649

SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69;

(2015) 231 FCR 1

Applicant:

ARMARJIT SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3384 of 2016

Judgment of:

Judge Nicholls

Hearing date:

11 December 2018

Date of Last Submission:

11 December 2018

Delivered at:

Sydney

Delivered on:

15 February 2019

REPRESENTATION

Counsel for the Applicant:

Mr A Silva

Solicitors for the Applicant:

AI Strategic Lawyers

Counsel for the Respondents:

Mr P Knowles

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application made on 1 December 2016 and as variously amended is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3384 of 2016

ARMARJIT 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 1 December 2016 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 27 October 2016 which affirmed the decision of the Minister’s delegate to refuse a partner (temporary) (class UK) visa (“the partner visa”) to Mr Armarjit Singh (“the applicant”).
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (the Court Book – “CB” – “RE1”), and the applicant’s affidavit affirmed on 22 May 2017, annexing a copy of the transcript (“T”) of the hearing before the Tribunal.

Background

The applicant is a citizen of India. He arrived in Australia on 13 June 2007 as the holder of a student visa. He was granted further student visas, the last student visa (which for current purposes I note was a substantive visa) ceased to have effect on 12 January 2011.
The applicant applied for the partner visa on 4 September 2012 (CB 3 – CB 35). On 22 October 2013 the Minister’s delegate refused this application. The delegate found that the applicant did not satisfy cl.820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations1994 (Cth) (“the Regulations”). This clause, amongst other things, required the applicant to satisfy criterion 3001 of Schedule 3 to the Regulations. That is, at the time of making his application, the applicant was required to be the holder of a…

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.

Keep reading for free

Create a free CaseChat account to read Singh v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FCCA 335
Decision Date: 15 February 2019

CaseChat Overview and Summary

Singh applied to the Minister for Immigration for review of a decision made by the Administrative Appeals Tribunal. The dispute concerned the application of Schedule 3 criteria to Singh's visa application.

The court was required to determine whether the Administrative Appeals Tribunal had committed a jurisdictional error in applying the Schedule 3 criteria. Specifically, the court had to consider whether there were compelling reasons not to apply these criteria in Singh's circumstances.

Judge Nicholls found that no jurisdictional error had been revealed. The court reasoned that the Tribunal had correctly applied the relevant legislative provisions and that there were no compelling reasons presented that would necessitate departing from the Schedule 3 criteria. Consequently, the application for review was dismissed.

Orders