Singh v Minister for Immigration - [2018] FCCA 2769

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2769

Catchwords:
MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Temporary Business Entry (Class UC) Temporary Work (Skilled) (subclass 457) visa – whether approved sponsor – whether approved nomination – whether Administrative Appeals Tribunal had jurisdiction – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), Pts.5, 7, ss.5, 140E, 140GB, 337, 338, 347, 411, 412, 474, 476

Migration Regulations 1994 (Cth), regs.2.58, 4.02, Sch.2, cl.457.223

Cases cited:

Ahmad v Minister for Immigration & Border Protection & Anor [2015] FCAFC 182; (2015) 237 FCR 365

Dyankov & Ors v Minister for Immigration & Border Protection & Anor [2017] FCAFC 81; (2017) 251 FCR 93; (2017) 72 AAR 240

Federated Engine-Drivers & Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398; (1911) 17 ALR 285
Jean v Minister for Immigration and Border Protection [2016] FCCA 1029
KRJF v Minister for Immigration & Anor [2018] FCCA 150
Minister for Immigration & Border Protection v Lee [2014] FCCA 2881
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Re Boulton; Ex parte Construction, Forestry, Mining and Energy Union (1998) 85 IR 468; (1998) 73 ALJR 129
Singh v Minister for Immigration & Anor [2017] FCCA 2385
Singh v Minister for Immigration & Border Protection [2018] FCA 186

Applicant:

PARAMVEER SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 631 of 2017

Judgment of:

Judge Antoni Lucev

Hearing date:

29 March 2018

Date of Last Submission:

29 March 2018

Delivered at:

Perth

Delivered on:

27 September 2018

REPRESENTATION

Applicant:

In person

Counsel for the First Respondent:

Mr A Burgess

For the Second Respondent:

Submitting appearance save as to costs

Solicitors for the Respondents:

Sparke Helmore

ORDERS

That the application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 631 of 2017

PARAMVEER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, Mr Paramveer Singh (“Mr Singh”), seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 25 October 2017. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to not grant Mr Singh a Temporary Business Entry (Class UC) Temporary Work (Skilled) (subclass 457) visa (“Work Visa”).
The Tribunal Decision appears in the Court Book (“CB”) at 78-81.

Background

The background to the Judicial Review Application is as follows:
a)on 14 May 2015 an application by “SSS WA GROUP PTY LTD” (“SSS WA”) to be approved as a standard business sponsor was approved by the Minister (“First Sponsorship…

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 2769
Decision Date: 27 September 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 was a citizen of India and had applied for a partner visa (subclass 820) on the basis of his relationship with an Australian citizen. The Minister's decision was made under s 501(1) of the *Migration Act 1958* (Cth), which allows for the refusal or cancellation of a visa if the Minister is satisfied that the person does not pass the character test. The applicant had a criminal record in Australia, including convictions for assault and drug offences. The Administrative Appeals Tribunal (AAT) had previously affirmed the Minister's decision. The matter came before Judge Antoni Lucev in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa on character grounds was affected by jurisdictional error. Specifically, the Court was asked to consider whether the Minister had failed to properly consider the applicant's personal circumstances and the best interests of his Australian citizen partner, as required by the *Migration Act* and relevant policy guidelines. The applicant argued that the Minister had placed undue weight on his criminal history without adequately balancing it against other relevant factors, such as his rehabilitation and the impact of the refusal on his partner.

Judge Lucev found that the Minister's delegate had failed to undertake a proper balancing exercise as required by s 501(1) of the *Migration Act*. The delegate had focused predominantly on the applicant's criminal record and the risk he posed to the Australian community, without giving sufficient weight to the mitigating factors presented, including the applicant's efforts at rehabilitation and the significant impact a visa refusal would have on his Australian partner. The Court held that a failure to properly weigh all relevant considerations constituted jurisdictional error.

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

Orders