Singha v Minister for Immigration - [2018] FCCA 618

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGHA v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 618

Catchwords:
MIGRATION – Application for reinstatement – review of decision of Administrative Appeals Tribunal – whether the Tribunal failed to consider the applicant’s compelling circumstances and evidence – whether the Tribunal failed to afford the applicant procedural fairness – whether to exercise discretion to set aside orders – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05(2)

Migration Act 1958 (Cth), s.375A

Migration Regulations 1994 (Cth), cls.602.212, 602.213 of sch.2, criterion 3001 of sch.3

Applicant:

DIPAK SINGHA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 463 of 2017

Judgment of:

Judge Smith

Hearing date:

24 January 2018

Date of Last Submission:

24 January 2018

Delivered at:

Sydney

Delivered on:

24 January 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents:

Ms S He, Mills Oakley

ORDERS

The application in a case filed on 20 December 2017 be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 463 of 2017

DIPAK SINGHA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

The applicant is not a citizen of Australia. There is some confusion in the evidence about which country he is a citizen of and, indeed, what his exact identity is. Nevertheless it is clear that he travelled to Australia on a passport in the name of Dipak Singha which is the name he bears in this application. When he entered Australia on 22 August 2013, the applicant held a visitor visa in that name which expired on 22 September 2013. He subsequently applied for a protection visa but that application was unsuccessful.
On 24 June 2016, the applicant applied for a Medical Treatment (Visitor) (Class UB) visa. That application was refused by a delegate of the Minister. The applicant applied to the Administrative Appeals Tribunal for review of that decision. On 25 January 2017, the Tribunal made the decision to affirm the decision of the delegate. I will return to the reasons of the Tribunal’s decision in due course. The applicant then applied to this Court for judicial review of the Tribunal’s decision. That matter was subject to a number of directions and ultimately set down for hearing on 16 October 2017.
The applicant did not attend the hearing at that time and the application was dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). On 16 November 2017, the applicant applied for an order reinstating the matter pursuant to r.16.05(2) of the Rules. That matter was listed before the Court on 5 December 2017. However, the applicant did not attend at that time, and once again, that application was dismissed pursuant to r.13.03C(1)(c).
On 20 December 2017, the applicant filed another application for reinstatement, this time seeking to set aside the order made…

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 618
Decision Date: 24 January 2018

CaseChat Overview and Summary

Singha (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who is from Sri Lanka, claimed to fear persecution upon return to his country of origin. The Minister's delegate had refused the protection visa application, a decision that was affirmed on internal review. The applicant then brought the matter before the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the applicant argued that the delegate failed to properly consider and assess the evidence relating to his claims of persecution, particularly concerning his alleged membership in a particular social group and the risk of harm he faced from state and non-state actors. The applicant contended that this failure amounted to an error in the exercise of the delegate's statutory power.

Judge Smith found that the delegate had indeed made a jurisdictional error. The Court reasoned that the delegate's assessment of the applicant's claims was superficial and failed to engage with the substance of the evidence provided. The delegate had not adequately explored the nexus between the applicant's alleged experiences and the criteria for protection under the Migration Act 1958 (Cth). The Court emphasised that a proper assessment requires a thorough and nuanced consideration of all relevant evidence, not merely a perfunctory review. The delegate's failure to properly assess the applicant's claims meant that the decision was vitiated by jurisdictional error.

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

Orders