Singh v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Case [2021] FCCA 529

FEDERAL CIRCUIT COURT OF AUSTRALIA

Singh v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 529

File number(s): ADG 266 of 2019
Judgment of: JUDGE EGAN
Date of judgment: 18 March 2021
Catchwords: MIGRATION – Application for Subclass 187 Visa under the Regional Sponsored Migration Scheme – where pre-condition for grant of visa was approval of nomination application by proposed employer – where nomination application refused – where pre-condition for grant of visa application not satisfied – no jurisdictional error established – application dismissed.  
Legislation: Migration Regulations 1994 (Cth), Schedule 2, cl 187.233.
Number of paragraphs: 7
Date of last submission/s: 16 March 2021
Date of hearing: 16 March 2021
Place: Brisbane
Counsel for the Applicants: Mr Mellor
Solicitor for the Applicants: Work Visa Lawyers
Solicitor for the First Respondent: Mr Chan of Sparke Helmore
Second Respondent: Submitting appearance save as to costs

ORDERS

ADG 266 of 2019
BETWEEN:

JASBIR SINGH

First Applicant

BALJEET KAUR

Second Applicant

EKAMJOT SINGH GURON

Third Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE EGAN

DATE OF ORDER:

18 MARCH 2021

IT IS ORDERED THAT:

1.The Originating Application for Review filed on 24 July 2019 be dismissed.

2.The Applicants pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $5,000.00.

REASONS FOR JUDGMENT

JUDGE EGAN:

  1. At the commencement of the hearing of this matter before the Court, the parties agreed that the outcome of the Originating Application for Review filed by the applicant on 24 July 2019 in this proceeding was dependent upon the success of the application for review filed on behalf of Harsinco Pty Ltd in ADG 264 of 2019. The Administrative Appeals Tribunal (‘the Tribunal’) had affirmed a decision of the delegate to refuse to grant the nomination application made by Harsinco Pty Ltd for the proposed employment of the applicant, and the company had sought a review of that decision by this Court.   

  2. For the reasons given by this Court in its judgment in ADG 264 of 2019 handed down today, the application for review filed in the registry of this Court by Harsinco Pty Ltd was dismissed.

  3. Clause 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) relevantly provided as follows:

    “187.233

    (1)       The position to which the application relates is the position:

    (a)  nominated in an application for approval that seeks to meet the requirements of:

    (i)        subparagraph 5.19(4)(h)(ii); or

    (ii)       subregulation 5.19(4) as in force before 1 July 2012; and

    (aa)  in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and

    (b)  in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)  The person who will employ the applicant is the person who made the nomination.

    (3)       The Minister has approved the nomination.

    (4)       The nomination has not subsequently been withdrawn.

    (4A)     Either:

    (a)  there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)  it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (5)       The position is still available to the applicant.

    (6)  The application for the visa is made no more than 6 months after the Minister approved the nomination.”

  4. Because the grant of the nomination application was a pre-condition to the grant of the applicant’s application for a Subclass 187 Visa, and because such nomination application was refused, the application for review in this proceeding was without merit.

  5. The applicant has failed to establish jurisdictional error on the part of the Tribunal.

  6. The Originating Application for Review is without merit and is dismissed.

  7. The Court will hear the parties as to costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       18 March 2021

Details
AGLC
Singh v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 529
Case
[2021] FCCA 529
Decision Date

CaseChat Overview and Summary

Singh (the applicant) sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the respondent) to refuse to grant a protection visa. The applicant, who is of Sikh faith and from Punjab, India, claimed to fear persecution in India due to his religious beliefs and his perceived association with a banned organisation. The Minister's delegate had refused the protection visa application, a decision that was affirmed by the Administrative Appeals Tribunal. The applicant then sought review of the Tribunal's decision in the Federal Court.

The primary legal issue before the Court was whether the Tribunal had erred in law by failing to adequately consider the applicant's claims of persecution, specifically in relation to his fear of being detained and tortured by Indian authorities. The applicant argued that the Tribunal had not properly assessed the credibility of his claims or given sufficient weight to the objective country information regarding the treatment of Sikhs in Punjab. A further issue concerned whether the Tribunal had adequately addressed the risk of refoulement, the principle that a person should not be returned to a country where they face a real risk of persecution.

Egan J found that the Tribunal had failed to adequately grapple with the applicant's evidence and the country information. The Court held that the Tribunal had not provided a sufficiently detailed or reasoned assessment of the applicant's claims, particularly concerning the risk of detention and torture. The Tribunal's reasoning was found to be deficient in its analysis of the nexus between the applicant's religious beliefs, his alleged association with the banned organisation, and the specific harms he feared. The Court emphasised that a proper assessment of protection claims requires a thorough and nuanced consideration of all relevant evidence and country information.

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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