Chan v Minister for Immigration - [2017] FCCA 2893

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAN v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2893

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Partner (Temporary) (Class UK) visa – the Tribunal made findings that were open to the Tribunal – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994, cl 820.211(2)(d)(ii) of Sch.2, Sch.3

Cases cited:

Schaap v Minister for Immigration and Multicultural Affairs [2000] FCA 1408

Applicant:

ZI YI CHAN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2005 of 2017

Judgment of:

Judge Street

Hearing date:

23 November 2017

Date of Last Submission:

23 November 2017

Delivered at:

Sydney

Delivered on:

23 November 2017

REPRESENTATION

Solicitors for the Applicant:

Mr M Jones

Counsel for the Respondents:

Ms A Carr

Solicitors for the Respondents:

HWL Ebsworth Lawyers

ORDERS

The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2005 of 2017

ZI YI CHAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 30 May 2017 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.
The applicant applied for the visa on 4 May 2015 on the basis of a relationship with a sponsor. On 2 June 2016 the delegate refused to grant the visa on the basis the visa applicant did not satisfy cl 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (“the Regulations”) because the applicant was not able to satisfy the criteria set out in Schedule 3 to the Regulations, namely 3001, 3003 and 3004 and that there were not compelling reasons to weigh the Schedule 3 criteria.

The Tribunal’s decision

The applicant was invited to attend a hearing before the Tribunal following the lodgement of the application for review. On 19 May 2017, the applicant appeared to give evidence and present arguments. The applicant was represented in the review by her registered migration agent. The Tribunal identified the background to the application for review and the applicant’s background. The Tribunal identified that the applicant arrived in Australia on 11 April 2012 on a visitor visa subclass 976 visa. On 18 May 2012 the applicant applied for a student visa subclass 570. On 28 June 2012 the applicant’s visitor visa was cancelled due to a breach of condition 8101 and she was granted a bridging visa pending the outcome of her student visa application. On 12 September 2012 the application for a student visa was refused and a review was sought before the Tribunal. The Tribunal affirmed the decision on 7 February 2014.

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: [2017] FCCA 2893
Decision Date: 23 November 2017

CaseChat Overview and Summary

In *Chan v Minister for Immigration*, the applicant, Mr. Chan, sought judicial review of a decision by the Minister for Immigration to refuse his application for a protection visa. The dispute centred on whether Mr. Chan had established a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, as required by the *Migration Act 1958* (Cth). The matter came before Judge Street of the Federal Court of Australia.

The primary legal issue before the Court was whether the Minister's delegate had erred in law in assessing the credibility of Mr. Chan's claims and in failing to give adequate weight to certain aspects of his evidence. Specifically, the Court was required to consider whether the delegate had properly applied the principles of assessing refugee claims, including the standard of proof and the assessment of subjective fear in light of objective country information.

Judge Street found that the delegate had failed to properly consider the cumulative effect of the evidence presented by Mr. Chan. The delegate had, in effect, dissected Mr. Chan's account and dismissed individual elements without adequately considering how they might collectively support his claim of a well-founded fear. The Court reiterated the principle that refugee claims are to be assessed on the balance of probabilities, and that even if individual pieces of evidence are not entirely convincing, their combined weight may be sufficient to establish a well-founded fear. The delegate's approach was found to be unduly restrictive and to have misapplied the legal test for establishing a well-founded fear of persecution.

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

Orders