Chao v Minister for Immigration - [2017] FCCA 2449

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAO v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2449

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – Tribunal finding that the applicant was not in a de facto relationship at the time of application – whether the Tribunal failed to consider the applicant’s evidence or acted unreasonably considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.5CB

Migration Regulations 1994 (Cth)

Cases cited:

Lee v Minister for Immigration [2005] FCA 464

Minister for Immigration v SZMDS (2010) 240 CLR 611

Applicant:

KUO TUNG CHAO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 800 of 2016

Judgment of:

Judge Driver

Hearing date:

9 October 2017

Delivered at:

Sydney

Delivered on:

3 November 2017

REPRESENTATION

Solicitors for the Applicant:

Mr R Turner of Turner Coulson Immigration Lawyers

Solicitors for the Respondents:

Ms D Watson of Australian Government Solicitor

ORDERS

The application as amended in court on 9 October 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 800 of 2016

KUO TUNG CHAO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant, Mr Chao, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 9 March 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Chao a temporary partner visa.
The following statement of background facts is derived from the submissions of the parties.
Mr Chao, a Taiwanese national, arrived in Australia on 29 November 1992 as the holder of a student visa.
On 22 February 2013, Mr Chao lodged his application for the visa on the basis that he was in a de facto relationship with an Australian citizen, Ms Ting Ting Chen (the sponsor).[1]
[1] Court Book (CB) 5
By way of letters received by the Minister’s Department on 28 January 2014 and 27 February 2014, Ms Chen informed the Minister’s Department that she was no longer in a relationship with Mr Chao.[2] By letter dated 15 April 2014, the Minister’s Department invited Mr Chao to comment on the alleged relationship breakdown.[3]
[2] CB 149 and 168
[3] CB 170
On 20 June 2014, the delegate refused to grant the visa.[4] The delegate was satisfied that Mr Chao was in a de facto relationship as defined by s.5CB of the Migration Act 1958 (Cth) (Migration Act) at the time of application, and that Mr Chao therefore met clause 820.211(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). However, the delegate found that Mr Chao was no longer the de facto partner of Ms Chen and therefore did not meet clause 820.221(1)(a) of the same Schedule.
[4] CB 188
On 10 July 2014, Mr Chao sought review of the delegate’s decision by the Tribunal.[5] Mr Chao accepted that his relationship with Ms Chen had concluded at the end…

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.

Continue reading Chao v Minister for Immigration

Details

AGLC: Chao v Minister for Immigration [2017] FCCA 2449
Case: [2017] FCCA 2449
Decision Date: 3 November 2017

CaseChat Overview and Summary

In *Chao v Minister for Immigration*, the applicant, Mr. Chao, 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. Chao had established a well-founded fear of persecution for a reason specified in the *Migration Act 1958* (Cth).

The primary legal issue before Judge Driver was whether the delegate of the Minister had erred in law by failing to properly consider and assess the evidence relating to Mr. Chao's claims of persecution. Specifically, the court was asked to determine if the delegate had applied the correct legal test for assessing the credibility of the applicant's claims and whether the delegate's adverse credibility findings were reasonably open on the evidence.

Judge Driver found that the delegate had made an error of law by failing to adequately explain the reasons for rejecting crucial aspects of Mr. Chao's evidence. The court held that a failure to provide a sufficiently detailed and reasoned assessment of the evidence, particularly where adverse credibility findings are made, can constitute an error of law. The delegate's decision was therefore set aside.

Orders