Chan v Minister for Immigration - [2020] FCCA 1094

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAN v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1094

Catchwords:
MIGRATION – Administrative Appeals Tribunal – whether the Tribunal failed to exercise its jurisdiction by not providing the applicant with a meaningful hearing – whether the Tribunal failed to follow a mandatory procedure in relation to the applicant’s interview – whether the Tribunal failed to provide the applicant with an opportunity to see additional time – whether there is jurisdictional error – no jurisdictional error made out – application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 359, 376, 375, 360, 361, 425

Migration Regulations 1994 (Cth), cl.820.211, sch.3, r.1.15

Cases cited:

Chan v Minister for Immigration and Anor [2018] FCA 2803

Chan v Minister for Immigration and Anor [2017] FCCA 2893

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123

Minister for Immigration Citizenship v SZIAI (2009) 259 ALR 429

Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin

[2005] FCAFC 118

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR

(2003) 128 FCR 553

NAQS v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1137

SZVGP v Minister for Immigration and Anor [2016] FCCA 3210

Applicant:

ZI YAN CHAN

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2847 of 2019

Judgment of:

Judge Humphreys

Hearing date:

7 May 2020

Date of Last Submission:

7 May 2020

Delivered at:

Parramatta

Delivered on:

5 June 2020

REPRESENTATION

Solicitors for the Applicant:

Mr Jones, Michael Jones Solicitor

Counsel for the Respondents:

Mr Johnson

Solicitors for the Respondents:

Hwl Ebsworth Lawyers

ORDERS

The application is dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $8,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 2847 of 2019

ZI YAN CHAN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

Introduction

The applicant is a citizen of Hong Kong and is currently in her mid-forties. The applicant first entered Australia on 11 April 2012, holding a Subclass 976 Tourist Visa. On 18 May 2012, the applicant unsuccessfully applied for a Student visa. The applicant’s Subclass 976 Tourist visa was cancelled on 28 June 2012, as she was found to be in breach of condition 8101 that she did not work in Australia. The applicant has not held a substantive visa since 2012.
The applicant has previously been married and divorced her first husband in 2008. On 31 October 2013, the applicant applied for a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa, on the basis of her relationship with her sponsor, Mr Sultana (“the sponsor”). The parties claim they first met each other on 25 December 2012 and the relationship developed after that time. They were married on 17 April 2013.
On 6 June 2016, a delegate of the Minister for Immigration and Border Protection (“the…

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 1094
Decision Date: 5 June 2020

CaseChat Overview and Summary

The applicant, Chan, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT). The core of the dispute concerned whether the AAT had failed to exercise its jurisdiction by not affording the applicant a meaningful hearing, specifically in relation to an interview and the opportunity to view additional material. The matter came before Judge Humphreys in the Federal Circuit Court.

The primary legal issues before the Court were whether the AAT had committed a jurisdictional error by failing to provide the applicant with a meaningful hearing, whether a mandatory procedure concerning the applicant's interview had been disregarded, and whether the applicant had been denied an adequate opportunity to review additional information presented to the Tribunal.

Judge Humphreys found that no jurisdictional error had been made out. The Court reasoned that the AAT had conducted the proceedings in a manner that did not constitute a failure to exercise its jurisdiction. The applicant had been afforded a hearing, and the procedures followed in relation to the interview and the review of additional material were deemed sufficient and did not breach any mandatory requirements that would vitiate the Tribunal's decision.

Consequently, the application for judicial review was dismissed.

Orders