Chan v Minister for Immigration - [2015] FCCA 47

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAN v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 47

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a partner visa – whether the Tribunal erred in proceeding on the basis that a de facto relationship requires co-habitation considered – whether the Tribunal erred in exercising its discretion to waive Schedule 3 criteria considered – whether the Tribunal misconstrued part of the applicant’s claim considered – no jurisdictional error.

Legislation:

Family Law Act 1975 (Cth), s.4AA

Migration Act 1958 (Cth), s.5CB

Migration Regulations 1994 (Cth)

Berenguel v Minister for Immigration (2010) 264 ALR 417
Boakye-Danquah v Minister for Immigration [2002] FCA 438
Minister for Immigration & Anor v SZOXP (2014) 285 FLR 384
NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1

Phan v Minister for Immigration & Anor [2007] FMCA 88
Shahi v Minister for Immigration (2011) 86 ALJR 162

Applicant:

YUK PING CHAN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 103 of 2014

Judgment of:

Judge Driver

Hearing date:

26 November 2014

Delivered at:

Sydney

Delivered on:

12 February 2015

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Chen Shan Lawyers

Counsel for the Respondents:

Mr J D Smith, SC

Solicitors for the Respondents:

DLA Piper

ORDERS

The application as amended on 26 November 2014 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 103 of 2014

YUK PING CHAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Migration Review Tribunal (Tribunal) made on 17 December 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Ms Chan, a temporary partner visa.
Ms Chan is a citizen of the People’s Republic of China who formerly resided in the Hong Kong special administrative region[1]. She applied for the visa on 15 July 2011 on the basis of her relationship with her sponsor, an Australian citizen named Lawrence James Gordon.
[1] at [4] of the Tribunal’s decision (court book (CB) 266). Ms Chan is incorrectly described as being a “citizen of Hong Kong”
The following statement of background facts is derived from the submissions of the parties. A chronology of relevant events is as follows:
a)3 March 2010 – Ms Chan entered Australia on a three month visitor’s visa[2];
[2] CB 197, 266 [4]
b)April 2010 – Ms Chan met Mr Gordon when working at a brothel. At that stage Mr Gordon was a client[3];
[3] CB 116 [2]
c)6 May 2010 – Ms Chan was granted a student visa[4];
d)19 June 2010 – Ms Chan was arrested whilst working in a brothel. She was subsequently convicted of drug offences and imprisoned for 12 months[5]. She claimed that Mr Gordon visited her weekly whilst she was incarcerated;
e)18 August 2010 – Ms Chan’s student visa…

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.

Keep reading for free

Create a free CaseChat account to read Chan v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] FCCA 47
Decision Date: 12 February 2015

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 a reason specified in the *Migration Act 1958* (Cth).

The primary legal issue before the Federal Court was whether the Refugee Review Tribunal (RRT) had erred in law by failing to adequately consider and assess the evidence presented by Mr. Chan regarding his fear of persecution. Specifically, the court had to determine if the RRT's assessment of the credibility of Mr. Chan's claims and its evaluation of the country information were sufficient to justify the refusal of the protection visa.

Judge Driver found that the RRT had failed to provide adequate reasons for its decision, particularly in relation to its assessment of the subjective fear of persecution. The court held that the RRT must not only consider the objective country information but also engage with and explain its findings on the applicant's subjective fear, even if it ultimately finds that fear to be unfounded. The failure to adequately explain the rejection of key aspects of Mr. Chan's evidence constituted an error of law.

The court ordered that the decision of the Refugee Review Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders