SINGH v Minister for Immigration - [2018] FCCA 3427

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3427

Catchwords:
MIGRATION – Partner visa application – extension of time – applicable principles – no significant delay – no prejudice – substantive merits in contest – whether applicant incarcerated during period of determination of visa application – where applicant’s premises uninhabited, phone disconnected, mail returned unclaimed – where Department told applicant probably in detention – where migration agent had informed Department he would no longer act – where migration agent had registration cancelled for five years – where gist of misconduct involved failure to inform clients – where applicant claims not to have been informed in a timely way of Delegate’s decision to refuse application – where application for merits review time lodged out of time – where Tribunal decided that it had no discretion to extend time – whether Tribunal had power to extend time – whether Tribunal ought to have recognised that it had such power and ought to have treated the application as filed as a proper or at least constructive application for an extension of time – whether open to argue that decision tainted by fraud on basis that process of engaging jurisdiction tainted by fraud of agent – whether arguable – whether in interests of administration of justice to extend time – extension of time granted.

Legislation:

Migration Act 1958 (Cth), ss.338, 347, 376, 474, 476, 477, 494B, 494C, 494D

Migration Regulations 1996, reg.4.10

Cases cited:

AYI16 vMinister for Immigration and Border Protection [2017] FCA 1358
Brown v Minister for Immigration and Border Protection [2018] FCA 1787
Craig v South Australia (1995) 184 CLR 163
Fareed v Minister for Immigration and Border Protection [2016] FCCA 1179
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jackamarra v Krakouer (1998) 195 CLR 516
Kristoffersen v Superannuation Complaints Tribunal [2014] FCAFC 63
Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

Applicant:

AMRITPAL SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 164 of 2017

Judgment of:

Judge A Kelly

Hearing date:

20 November 2017

Date of Last Submission:

20 November 2017

Delivered at:

Melbourne

Delivered on:

27 November 2018

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Mr…

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 3427
Decision Date: 27 November 2018

CaseChat Overview and Summary

Singh (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse his application for a Protection visa. The applicant, who is from Afghanistan, claimed to fear persecution upon return to his home country due to his perceived association with a political party. The matter came before Judge A Kelly in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had erred in law by failing to properly consider the applicant's claims of past persecution and the real chance of future persecution. Specifically, the Court was asked to determine if the delegate had adequately assessed the evidence presented by the applicant and applied the correct legal test for establishing a well-founded fear of persecution under the Migration Act 1958 (Cth).

Judge A Kelly found that the delegate had failed to properly engage with the applicant's evidence regarding his alleged past persecution. The delegate's assessment was found to be superficial and did not adequately explain why the applicant's account was not accepted or how it was inconsistent with other evidence. The Court reiterated the principle that a delegate must give proper, genuine and realistic consideration to all relevant evidence, and that a failure to do so constitutes an error of law. The Court concluded that the decision under review was affected by this error.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders