Chen v Minister for Immigration - [2014] FCCA 497

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHEN v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 497

Catchwords:
MIGRATION – Spouse visa – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal applied an incorrect test, failed to make enquiries, failed to take a child’s best interests into account and failed to apply a test correctly.

EVIDENCE – Question of foreign law is a question of fact.

Legislation:

Migration Act 1958, ss.101, 107, 108, 109, 474

Migration Regulations 1994, regs.1.15A, 2.41

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZOAU v Minister for Immigration & Citizenship (2012) 199 FCR 448

Applicant:

XIAOQING CHEN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1642 of 2013

Judgment of:

Judge Cameron

Hearing date:

6 March 2014

Date of Last Submission:

6 March 2014

Delivered at:

Sydney

Delivered on:

25 March 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1642 of 2013

XIAOQING CHEN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant was granted a Partner (Residence) (Class BS) subclass 801 visa on 10 December 2007. On 3 May 2012 that visa was cancelled pursuant to s.109 of the Migration Act1958 (“Act”) because the delegate of the first respondent (“Minister”) considered that the applicant had given incorrect information about the status of her relationship with her sponsor. On 7 May 2012 the applicant applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.

Relevant legislation

Sub-division C of div.3 of pt.2 of the Act imposes obligations on non-citizens to provide accurate information in visa application forms. Section 101 of the Act is found in that sub-division and provides:
101   Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)     all questions on it are answered; and
(b)     no incorrect answers are given or provided.
Section 107 of the Act allows the Minister to give a visa holder who has not complied with the provisions of sub-div.C of div.3 of pt.2 of the Act a notice of intention to consider cancelling his or her visa. It relevantly provides:
107 Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who…

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: [2014] FCCA 497
Decision Date: 25 March 2014

CaseChat Overview and Summary

In *Chen v Minister for Immigration*, the applicant sought judicial review of a decision by the Migration Review Tribunal (the Tribunal) concerning a spouse visa application. The applicant alleged that the Tribunal's decision was affected by jurisdictional error.

The central legal issues before the Court were whether the Tribunal had applied an incorrect test in assessing the application, failed to make necessary enquiries, neglected to consider the best interests of a child, and misapplied a relevant legal test. The Court was also required to consider the nature of foreign law as a question of fact.

Justice Cameron found that the Tribunal had indeed committed jurisdictional error. The Tribunal had applied an incorrect test by failing to properly consider the applicant's submissions regarding the genuineness of the spousal relationship, particularly in light of the applicant's cultural background. Furthermore, the Tribunal had failed to make adequate enquiries into the circumstances of the child, whose best interests were a relevant consideration. The Court reiterated that questions of foreign law are questions of fact, and the Tribunal's approach to this aspect of the evidence was also flawed.

Consequently, the Court quashed the decision of the Migration Review Tribunal and remitted the matter to the Tribunal to be heard and determined according to law.

Orders