Singh v Minister for Immigration - [2018] FCCA 3180

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
Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184
Le v Minister for Immigration and Border Protection [2018] FCA 1256
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZDMS (2010) 240 CLR 611

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
Wan v Minister for Immigration and Multicultural Affairs (2001) FCA 568

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…

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 3180
Decision Date: 7 November 2018

CaseChat Overview and Summary

Singh applied to the Minister for Immigration for review of a decision made by the Administrative Appeals Tribunal. The Tribunal had found that there were no compelling reasons to justify a waiver of the Schedule 3 criteria under the Migration Regulations. The applicant sought judicial review of the Tribunal's decision.

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.

Orders