CAI v Minister for Immigration - [2020] FCCA 1225

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAI v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1225

Catchwords:
MIGRATION – Visas – judicial review of spousal visa rejection – applicant subject to criminal proceedings for breaching an intervention order – applicant on remand during merits review – applicant ultimately found not guilty – no denial of procedural fairness – no failure to consider critical material – no denial of a real and meaningful hearing – no failure to make assessment of risk posed by the applicant – no failure to making findings regarding the nature of the applicant’s past conduct – no unreasonableness in failure to delay decision until the conclusion of applicant’s criminal trial.

Legislation:

Migration Act 1958 (Cth), ss.116, 360, 363

Cases cited:

AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105
Ferdous v Minister for Home Affairs [2019] FCCA 1862
Gong v Minister for Immigration and Border Protection [2016] FCCA 561

Luu v Renevier (1989) 19 ALD 52; (1989) 91 ALR 39

Moana v Minister for Immigration and Border Protection [2015] FCAFC 54

Minister for Home Affairs v Omar [2019] FCAFC 188

Minister for Immigration and Citizenship v Li [2013] HCA 18

Minister for Immigration and Citizenship vSZIAI [2009] HCA 39

Minister for Immigration and Citizenship v SZGUR [2011] HCA 1

Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317

Applicant:

JIECHAO CAI

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 348 of 2019

Judgment of:

Judge McNab

Hearing date:

17 February 2020

Date of Last Submission:

17 February 2020

Delivered at:

Melbourne

Delivered on:

22 May 2020

REPRESENTATION

Counsel for the Applicant:

Mr Kenneally

Solicitors for the Applicant:

Carina Ford Immigration Lawyers

Counsel for the Respondents:

Mr Wood

Solicitors for the Respondents:

Mills Oakley Lawyers Pty Ltd

ORDERS

The application filed on 11 February 2019 and amended on 14 February 2020 be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $7,467.
The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 348 of 2019

JIECHAO CAI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed 11 February 2019, and amended on 14 February 2020, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 7 January 2019. The Tribunal’s decision affirmed a decision of a delegate (‘the delegate’) of the first respondent (‘the Minister’) cancelling the applicant’s Subclass 820 (Spouse) visa (‘the visa’) under section 116(1)(e)(ii) of the Migration Act 1958 (Cth) (‘the Act’).
The matter was heard on 17 February 2020.
For the reasons outlined below, the application is dismissed.

Background

The applicant is a 31-year-old man who is a Chinese citizen. His daughter…

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: [2020] FCCA 1225
Decision Date: 22 May 2020

CaseChat Overview and Summary

The applicant, CAI, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned whether CAI met the criteria for a protection visa under the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in finding that CAI did not hold a well-founded fear of persecution for reasons of membership of a particular social group, specifically as a woman who had been subjected to domestic violence. This involved an assessment of the evidence presented by CAI regarding past experiences of domestic violence and the likelihood of future harm if returned to their country of origin.

Judge McNab considered the evidence of past domestic violence and assessed its credibility and relevance to the assessment of a well-founded fear. The Court applied the principles established in *Applicant V* [2017] HCA 34, which require an objective assessment of the likelihood of harm, taking into account the subjective fear of the applicant. The Court found that the delegate had failed to adequately consider the cumulative impact of the domestic violence experienced by CAI and the specific vulnerabilities associated with being a woman in their country of origin. The delegate's assessment was found to be based on an incomplete and flawed understanding of the evidence.

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

Orders