Cao v Minister for Immigration - [2007] FMCA 1239

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CAO v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1239

MIGRATION – Permanent spouse visa – Migration Review Tribunal – whether jurisdictional error – Regulation 1.21 – meaning of ‘competent person’ – whether no evidence – manager or co-ordinator of women’s refuge.

Migration Regulations 1994, div.1.5, reg.1.21
Migration Act 1958, s.359A

Applicant:

KUN YU CAO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 1195 of 2005

Judgment of:

McInnis FM

Hearing date:	2 May 2007
Date of last submission:	16 May 2007

Delivered at:

Melbourne

Delivered on:

31 July 2007

REPRESENTATION

Counsel for the Applicant:

Mr W.G. Gilbert

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Mr C.J. Horan

Solicitors for the First Respondent:

DLA Phillips Fox

ORDERS

A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 21 August 2006.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
The First Respondent pay the Applicant’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1195 of 2005

KUN YU CAO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

In this application the Applicant seeks judicial review of a decision of the Migration Review Tribunal ("the Tribunal") dated 21 August 2006. In its decision, the Tribunal affirmed a decision of a delegate of the First Respondent to refuse to grant to the Applicant a class BC subclass 100 partner (migrant) visa ("the permanent spouse visa").
The Applicant is a national of the People's Republic of China (“the PRC”). On 12 November 2003 the Applicant applied for a spouse visa on the basis of her marriage to Mr Tao Ye ("the nominator"). The nominator is an Australian citizen, though the marriage between the nominator and the Applicant occurred in the PRC on 20 April 2003.
On 27 May 2004 the Applicant was granted a temporary spouse visa. The Applicant entered Australia on 13 June 2004.
By letter dated 11 February…

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: [2007] FMCA 1239
Decision Date: 31 July 2007

CaseChat Overview and Summary

The case of Cao v Minister for Immigration involved Ms. Cao, a Chinese national, who sought to challenge the decisions made by the Minister for Immigration and the Administrative Appeals Tribunal regarding her application for review of a decision to cancel her visa. The dispute primarily centred around the interpretation of evidence and the criteria applied by the Tribunal in assessing Ms. Cao's eligibility for protection under the Migration Act. The matter was heard in the Federal Court of Australia.

The central legal issue before the court was whether the Administrative Appeals Tribunal had erred in its interpretation of the evidence regarding Ms. Cao's employment and the nature of services provided by WAYSS Ltd, particularly concerning domestic violence support. The court was required to determine if the Tribunal had applied the correct legal test in evaluating whether Ms. Cao's employment and the services provided by WAYSS Ltd met the criteria for protection under the Migration Act. Specifically, the court needed to consider whether the term "specialises" in providing services related to domestic violence was correctly interpreted and whether Ms. Cao's role and the services offered by WAYSS Ltd were accurately assessed.

The court examined the evidence presented to the Tribunal, including the letterhead of WAYSS Ltd, which listed various services offered, and the letters from WAYSS Ltd regarding Ms. Cao's placement in the Emergency Youth Accommodation service due to domestic violence. The court noted that while the Tribunal had concluded there was no evidence to suggest Ms. Cao or Ms. Hart were involved in coordinating domestic violence services, the letterhead and correspondence indicated a broader scope of services related to domestic violence. The court found that the Tribunal had applied an incorrect test by interpreting "specialises" to mean a sole specialty rather than considering the broader context of the services offered. Consequently, the court ruled that the Tribunal's decision was flawed, and the Minister's decision to cancel Ms. Cao's visa was quashed.

The court issued a writ of certiorari to quash the decision of the Second Respondent and a writ of mandamus to require the Minister to determine Ms. Cao's application for review according to law. Additionally, the court ordered the First Respondent to pay the Applicant's costs in the sum of $5,000.00.

Orders

Orders of the court

A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 21 August 2006.

A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.

The First Respondent pay the Applicant’s costs fixed in the sum of $5,000.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Reference was made to the Tribunal's decision set out earlier in this judgment and in particular the following findings:“Whilst there is evidence that the emergency youth accommodation service is affiliated or connected with the WAYSS domestic violence service, there is no evidence before the Tribunal to suggest that Ms Hart is employed as a co-ordinator of that, or any other, domestic violence service. (Emphasis added)There is no evidence before the Tribunal to suggest that Ms Hart is a co-ordinator or manager of a women's refuge, or a crisis and counselling service that specialises in domestic violence ...” (Emphasis added) It was submitted that the Tribunal was wrong in concluding there was "no evidence", as set out above, and further that it had imposed the incorrect test namely, one that interpreted "specialises" to mean a sole specialty. Reference was made to the evidence concerning the Emergency Youth Accommodation (“EYA”) section of which Ms Hart was the coordinator and that it had a specialty in relation to domestic violence. Reliance was placed upon the letterhead of WAYSS Ltd which indicated it had eight areas in which it offered services including the following:·Transitional housing management·Youth housing support services·Emergency youth accommodation·Family violence support services·Women's outreach program·Domestic violence crisis service·Outer south rooming house program·Drug Court homelessness assistance program It was noted that the letterhead also states that WAYSS Ltd is engaged in "providing housing and support services in the community" (Court Book p.108). It is noted in passing that the letter dated 28 February 2005 from WAYSS Ltd relevantly states, as set out earlier in this judgment, the following:“Ms. Cao is currently residing at WAYSS Emergency Youth Accommodation due to violence inflicted by her husband ...” The author of that letter, it was submitted, describes herself as "F.V. Crisis Support Worker". The court takes that to mean "family violence crisis support worker". Reference was then made to the letter dated 18 March 2005, also referred to earlier in this judgment, from WAYSS Ltd (Court Book p.115) where the author relevantly states:“Ms. Cao sought assistance from WAYSS Ltd. Family Violence Crisis Service on the 21st of February 2005 for crisis accommodation. She stayed few days at motel until a vacancy became available at WAYSS Ltd. Emergency Youth Accommodation.” (sic) It was submitted that that letter is a clear indication of a service being provided of a kind which could properly be described as "family violence support service" and/or "domestic violence crisis service". It was noted that the placement in the Emergency Youth Accommodation service for the Applicant, who was then aged 23 years, was a placement, as the name suggests, for "young people who are homeless or at the risk of being homeless". It is noted that in the letter dated 18 March 2005 the family violence crisis support worker encloses the report from Ms Hart, described as "Co-ordinator of EYA", which the Court accepts clearly refers to "Emergency Youth Accommodation."

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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