Singh v Minister for Immigration - [2018] FCCA 3769

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3769

Catchwords:
MIGRATION – Application to review decision of the Administrative Appeals Tribunal that it did not have jurisdiction – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.140E, 140GB, 338, 347, 353, 360

Cases cited:

Brown v Minister for Home Affairs [2018] FCA 1643

Applicant:

HARDEEP SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2313 of 2016

Judgment of:

Judge Barnes

Hearing date:

3 December 2018

Delivered at:

Sydney

Delivered on:

3 December 2018

REPRESENTATION

Solicitors for the Applicant:

In person

Solicitors for the Respondents:

HWL Ebsworth Lawyers

ORDERS

The application be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2313 of 2016

HARDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 11 August 2016. The Tribunal found that it did not have jurisdiction to review a decision of a delegate of the First Respondent to refuse to grant the Applicant a Temporary Business Entry (Class UC) visa.
The Applicant applied for that visa on 4 January 2016 on the basis that he was sponsored (and identified in a nomination) by a prospective employer, Zampelle Pty Ltd (Zampelle). However on 19 April 2016 the Department refused Zampelle’s application for standard business sponsorship approval and hence its nomination application was unable to be assessed.
The Department wrote to Mr Singh on 19 April 2016, putting this information to him for comment. It appears from the delegate’s decision that Mr Singh did not respond to this invitation to comment.
On 18 May 2016, a delegate of the Minister refused Mr Singh’s visa application, finding that as he was not the subject of an approved nomination, he did not meet the criterion for a Subclass 457 visa in cl.457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
Mr Singh sought review by application lodged with the Tribunal on 31 May 2016. The Tribunal acknowledged receipt of that application, advising him on 3 June 2016 that the validity of his application had not been assessed, that it could only review a decision if a valid application for review had been made, and that he would be advised if it appeared his application may not be valid.
On 11 July 2016 a Tribunal officer wrote to Mr Singh expressing the view that his review application was not valid because at the time it was lodged, he was not identified in a nomination under s.140GB of the Migration Act 1958 (Cth) (the Act) that was approved or pending and there was no pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E or a decision…

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 3769
Decision Date: 3 December 2018

CaseChat Overview and Summary

Singh (the applicant) sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) that it lacked jurisdiction to consider his application. The AAT's decision arose from an application made by Singh concerning a decision made by the Minister for Immigration.

The central legal issue before Barnes J was whether the AAT had erred in law by determining it did not have jurisdiction to hear Singh's application. This required the court to consider the scope of the AAT's jurisdiction in relation to migration matters and the specific circumstances of Singh's application.

Barnes J reasoned that the AAT had correctly interpreted the relevant legislative provisions governing its jurisdiction. The court found that the application brought before the AAT did not fall within the types of matters over which the Tribunal was empowered to exercise its jurisdiction. Consequently, the AAT's conclusion that it lacked jurisdiction was upheld.

The application for judicial review was dismissed.

Orders