Singh v Minister for Immigration - [2018] FCCA 3648

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3648

Catchwords:
MIGRATION – Administrative Appeals Tribunal – partner (temporary) (class UK) visa – whether the Tribunal considered all of the matters it was required to consider under reg.1.15A(3) of the Migration Regulations 1994.

Legislation:
Migration Act 1958, ss.5CB, 5F
Migration Regulations 1994, regs.1.09A, 1.15A

Cases cited:

He v Minister for Immigration and Border Protection (2017) 255 FCR 41; [2017] FCAFC 206
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248; (2010) 119 ALD 26; (2010) 274 ALR 438; [2010] FCAFC 145

Applicant:

JAGJEET SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 787 of 2017

Judgment of:

Judge Riley

Hearing date:

24 July 2018

Date of last submission:

20 August 2018

Delivered at:

Melbourne

Delivered on:

11 December 2018

REPRESENTATION

Advocate for the applicant:

In person

Solicitors for the applicant:

None

Counsel for the first respondent:

Angel Aleksov

Counsel for the second respondent:

No appearance

Solicitors for the respondents:

Sparke Helmore

ORDERS

The application filed on 19 April 2017 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 787 of 2017

JAGJEET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the applicant a partner (temporary) (class UK) visa.
The matter had previously been remitted to the Tribunal. The reasons for decision for the remittal are contained in Singh v Minister for Immigration & Anor [2016] FCCA 1845.

The applicant’s claims

The applicant claimed that he was married to Ms Lancaster on 8 May 2011. He said that on 30 January 2012 he moved out of the premises he had shared with Ms Lancaster. He said they were divorced with effect from 17 October 2014. The applicant claimed that he and Ms Lancaster separated because she perpetrated family violence against him.

Legislation

The general rule is that, to be eligible for a partner visa, an applicant is required, at the time of application and at the time of decision, to satisfy the definition of de facto partner in s.5CB of the Migration Act 1958 (“the Act”) or the definition of spouse in s.5F of the Act. There are exceptions to the general rule that a person must continue to be the de facto partner or spouse of a relevant person as at the time of decision, including that the relationship has ended in circumstances of family violence perpetrated by the de facto partner or spouse on the applicant.
Section 5CB of the Act defines de facto partner as follows:
(1) For the purposes of this Act, a person is the de facto partner of another person (whether 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: [2018] FCCA 3648
Decision Date: 11 December 2018

CaseChat Overview and Summary

Singh (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant him a visa. The applicant had applied for a Protection visa, which was refused by the primary decision-maker. The applicant then sought review of that decision by the Administrative Appeals Tribunal (AAT), which affirmed the refusal. The applicant subsequently filed an application for judicial review in the Federal Court of Australia.

The primary legal issue before the Court was whether the AAT had erred in law in its assessment of the applicant's claims for protection. Specifically, the applicant argued that the AAT had failed to adequately consider certain aspects of his evidence and had applied an incorrect legal test in determining whether he would be a person to whom Australia would have protection obligations under the *Migration Act 1958* (Cth). The applicant contended that the AAT had misinterpreted the meaning of "well-founded fear" and had not properly engaged with the evidence concerning his alleged persecution in his country of origin.

Judge Riley found that the AAT had indeed made an error of law. The Tribunal had failed to properly consider the cumulative effect of the evidence presented by the applicant, particularly in relation to his claims of past persecution and the likelihood of future persecution. The Court held that the AAT had applied an overly narrow interpretation of the relevant legal provisions and had not afforded sufficient weight to the applicant's subjective fear, provided it was reasonably open to be accepted. The Court reiterated the principles that a fear need not be objectively probable, but rather a real chance of persecution, and that the assessment must be holistic.

The Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders