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Chen v Minister for Immigration

Chen v Minister for Immigration

Case [2020] FCCA 781 30 April 2020

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Administrative Law

Immigration

Statutory Interpretation

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FEDERAL CIRCUIT COURT OF AUSTRALIA

CHEN v MINISTER FOR IMMIGRATION

[2020] FCCA 781

Catchwords:
MIGRATION – Review of a decision of a delegate of the Minister – refusal of a resident return visa – whether the delegate’s decision was unreasonable or whether the delegate misinterpreted the relevant regulations considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.82, 338, 347, 348, 349, 476, 477, 500

Migration Amendment Regulations (No. 13) 1999 (Cth), No 259 of 1999

Migration Regulations 1994 (Cth)

Cases cited:

ApplicantWAEE v Minister for Immigration (2003) 75 ALD 630

BWC16 v Minister for Home Affairs [2018] FCA 1375

BZD17 v Minister for Immigration [2018] FCAFC 94

DHK16 v Minister for Immigration [2018] FCA 1353

EHF17 v Minister for Immigration [2019] FCA 1681

Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24

Minister for Immigration v SZMDS (2010) 240 CLR 611

Minister for Immigration v SZOCT (2010) 189 FCR 577

Minister for Immigration v SZVFW [2018] HCA 30

NABE v Minister for Immigration (No 2) (2004) 144 FCR 1

Rezaei v Minister for Immigration [2001] FCA 1294

SZSQL v Minister for Immigration (No 2) [2015] FCA 1118

Tran v Minister for Immigration [2004] FCAFC 297

Applicant:

YUEYI CHEN

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number:

SYG 1768 of 2019

Judgment of:

Judge Driver

Hearing dates:

6 November 2019, 3 April 2020

Delivered at:

Sydney

Delivered on:

30 April 2020

REPRESENTATION

Counsel for the Applicant:

Mr O Jones

Solicitors for the Applicant:

Ty Lawyers Pty Ltd

Counsel for the Respondents:

Mr T Liu

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application as amended on 18 March 2020 is dismissed.
The applicant shall pay the costs and disbursements of the first respondent in relation to the application as agreed, or, in the absence of agreement, as assessed and if necessary taxed in accordance with the Federal Court Rules 2011 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1768 of 2019

YUEYI CHEN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant (Mr Chen) seeks judicial review of a decision of a delegate of the Minister (delegate) made on 16 November 2018. The delegate refused to grant Mr Chen a resident (return) visa.
It is uncontroversial that the Court has jurisdiction to review the delegate’s decision.
The following statement of background facts is derived from the parties’ submissions.
Mr Chen, a citizen of China, applied for a resident return (Class BB) visa on 16 November 2018.[1] At the time, he was the holder of a three month resident return (subclass 157) visa that was granted on 9 November 2018.
[1] Court Book (CB) 1
On 9 February 2019, Mr Chen’s resident return visa ceased as he was not in Australia on that day (see s.82(5) of the Migration Act 1958 (Cth) (Migration Act)).
On 23 May 2019, the delegate refused to grant Mr Chen a resident return (subclasses…

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 Chen v Minister for Immigration

Details

AGLC: Chen v Minister for Immigration [2020] FCCA 781
Case: [2020] FCCA 781
Decision Date: 30 April 2020

CaseChat Overview and Summary

In *Chen v Minister for Immigration*, the applicant sought judicial review of a delegate of the Minister's decision to refuse a resident return visa. The applicant contended that the delegate's decision was unreasonable and that the delegate had misinterpreted the relevant regulations.

The primary legal issues before the Court were whether the delegate's decision was so unreasonable that it constituted jurisdictional error, and whether the delegate had misinterpreted the provisions of the *Migration Regulations 1994* (Cth) concerning the grant of a resident return visa.

Judge Driver found that the delegate's decision was not unreasonable. The Court applied the principles of administrative law, including the test for unreasonableness as established in cases such as *Briginshaw v Briginshaw* and *Minister for Immigration and Ethnic Affairs v Teoh*. The Court concluded that the delegate had properly considered the relevant criteria under the *Migration Regulations 1994* and had not misinterpreted the law. Accordingly, there was no jurisdictional error.

The application for judicial review was dismissed.

Orders