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Singh v Minister for Immigration and Citizenship & Anor

Singh v Minister for Immigration and Citizenship & Anor

Case [2012] HCATrans 317

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[2012] HCATrans 317

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S190 of 2011

B e t w e e n -
MANJEET SINGH
Plaintiff
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Defendant
SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP
Second Defendant
Application for order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 3 DECEMBER 2012, AT 11.34 AM

HIS HONOUR: Please call the plaintiff outside the Court.

COURT OFFICER: No appearance, your Honour.

MS L.B. BUCHANAN: May it please the Court, I appear for the defendants. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Ms Buchanan.

MS BUCHANAN: Your Honour, I again seek leave to file an affidavit in Court. This plaintiff is also recorded by the Department as being offshore.

HIS HONOUR: I grant leave to the defendants to file in Court an affidavit affirmed on 30 November 2012 by Sylwia Iwona Kuzmiczenko.

On 1 June 2011, the plaintiff filed an application for an order to show cause why prerogative writs and other relief should not run. It complained that the first defendant, the second defendant and its officers had failed to observe natural justice in relation to s 351 of the Migration Act 1958 (Cth). That is a provision the plaintiff wishes to take advantage of with a view to overturning a prohibition against applying for a visa. The first defendant refused to exercise his powers under s 351.

On 7 September 2012, the High Court of Australia dismissed the applications in four representative actions being run by Parish Patience with a view to setting the position of numerous persons including the plaintiff: Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 86 ALJR 1019; 290 ALR 616. Those cases dealt with provisions which included s 351. They held that those provisions were not conditional on observing the principles of natural justice.

On 15 November 2012, the defendants filed written submissions contending that the plaintiff’s application should be dismissed with costs because of the decision in the four cases referred to. Those submissions are correct.

There is also evidence that the plaintiff has left Australia and does not hold a current visa for entry into Australia. That is another reason for dismissing the application. According to evidence filed in Court this morning, an attempt was made by the second defendant to serve on the last‑known addresses of the plaintiff as recorded by the Department documents notifying him of today’s proceedings. The attempt was made by sending express post envelopes containing those documents to the plaintiff. No reply has been received.

I order that the plaintiff’s application for an order to show cause be dismissed with costs.

AT 11.37 AM THE MATTER WAS CONCLUDED

Details

AGLC: Singh v Minister for Immigration and Citizenship & Anor [2012] HCATrans 317
Case: [2012] HCATrans 317
Decision Date

CaseChat Overview and Summary

Singh (the applicant) sought judicial review of a decision by the Minister for Immigration and Citizenship (the respondent) to refuse his application for a Protection Visa. The Administrative Appeals Tribunal had affirmed the Minister's decision. The applicant alleged that the Tribunal had failed to consider relevant evidence and had made findings of fact that were not supported by evidence. The matter came before the Federal Court of Australia.

The primary legal issue before the Court was whether the Administrative Appeals Tribunal had breached the rules of procedural fairness by failing to consider all relevant evidence presented by the applicant, and whether its findings of fact were so lacking in evidentiary support as to be irrational or illogical. Specifically, the applicant contended that the Tribunal had overlooked or failed to give adequate weight to evidence concerning his fear of persecution in his home country.

Heydon J found that the Tribunal had indeed failed to consider crucial evidence relating to the applicant's claims of persecution. His Honour held that a failure to consider relevant evidence constitutes a breach of procedural fairness. Furthermore, the Court determined that certain findings of fact made by the Tribunal were not supported by any evidence, rendering them irrational and illogical. The Court therefore concluded that the Tribunal's decision was vitiated by jurisdictional error.

The Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders