Singh v Minister for Immigration and Border Protection

In the Federal Circuit Court, the applicant, Mr. Singh, sought judicial review of a decision of the Migration Review Tribunal to cancel his 573 Visa on the basis that he had failed to comply with the conditions of that visa. The Federal Circuit Court dismissed the application for judicial review. The appeal to the Federal Court challenges the correctness of that decision. The appeal raises a single issue: whether the Federal Circuit Court erred in failing to identify any jurisdictional errors that had been raised in the grounds of review before that Court. In addressing this issue, the Court examined the principles governing the exercise of the Court’s discretion to grant leave to appeal under r 44.12 of the Federal Circuit Court Rules 2001 (Cth). The Court found that the Federal Circuit Court had failed to adequately consider whether the Migration Review Tribunal had afforded insufficient weight to the fact that, and the circumstances in which, the applicant had previously applied for a subclass 572 visa. This failure arguably constituted a jurisdictional error.

The Court concluded that the Federal Circuit Court should have considered whether the Tribunal had failed to give sufficient weight to the fact that, and the circumstances in which, the applicant had previously applied for a subclass 572 visa, so as to commit a jurisdictional error in the manner identified in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [72]. The Court found that the Tribunal had failed to consider this fact and its associated circumstances. The Court found that this failure arguably constituted a jurisdictional error. The Court found that the Federal Circuit Court should have identified this error and remitted the matter to the Federal Circuit Court for final hearing and determination. The Court held that the appeal should be allowed in part and that the judgment of the Federal Circuit Court dismissing the applicant’s application for judicial review should be set aside. The Court ordered that the matter be remitted to the Federal Circuit Court for final hearing and determination.