FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3180 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal - where the Tribunal found no compelling reasons justifying the waiver of the Schedule 3 criteria – Article 3(1) of the United Nations Convention on The Rights of the Child - where Tribunal was found to have considered the best interests of the child – no jurisdictional error demonstrated – application for review dismissed. |
| Legislation: Migration Regulations 1994 (Cth), sch.3, cl 820.21. |
| Cases cited: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77 Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 |
| Applicant: | GURVINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 1166 of 2017 |
| Judgment of: | Judge Egan |
| Hearing date: | 29 October 2018 |
| Date of Last Submission: | 29 October 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 7 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Boccabella |
| Solicitors for the Applicant: | A J Torbey & Associates |
| Counsel for the Respondents: | Mr McGlade |
| Solicitors for the Respondents: | Clayton Utz |
THE COURTS ORDERS ON A FINAL BASIS THAT:
The Application for review is dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review as assessed on the Federal Circuit Court Scale of Costs unless otherwise agreed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG1166 of 2017
| GURVINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is an Indian citizen. He first arrived in Australia on a student (subclass 572) visa on 8 May 2009. That visa expired on 1 September 2011. The applicant’s relevant appeal and visa application history is as set out in [14] of the reasons of the Tribunal as follows: [1]
He applied for a Skilled (Provisional) (Subclass 485) (Temporary Graduate) visa on 22 July 2011, and this application was refused. He appealed the decision to the Tribunal on 19 February 2015 and it was affirmed on 12 January 2016.
He applied for a Protection visa on 12 April 2013, and this application was refused. He appealed the decision to the then Refugee Review Tribunal on 10 March 2014 and it was affirmed on 22 September 2014.
He applied for Ministerial Intervention on 28 October 2014 and this request received an outcome of 'inappropriate to consider' on 9 March 2015. He applied for Ministerial Intervention again on 4 February 2016 and this request was also found to be…
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- Case
- [2018] FCCA 3180
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the Tribunal had erred in law by failing to adequately consider the best interests of the child, as required by Article 3(1) of the United Nations Convention on the Rights of the Child, when determining whether to waive the Schedule 3 criteria. The applicant contended that the Tribunal's assessment of this criterion was insufficient.
Egan J found that the Tribunal had indeed considered the best interests of the child in its decision-making process. The Court held that the Tribunal's findings demonstrated that it had taken this factor into account, and that no jurisdictional error had been demonstrated. Consequently, the application for review was dismissed.
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