Chien v Minister for Immigration - [2013] FCCA 218

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHIEN v MINISTER FOR IMMIGRATION

[2013] FCCA 218

Catchwords:
PRACTICE AND PROCEDURE – Joinder of parties – whether child should be joined to proceedings – where proceedings commenced by child’s father on his own behalf – where no evidence of child’s capacity to make decision now under challenge – child joined – litigation guardian to be appointed.

Legislation:
Administrative Decisions (Judicial Review) Act 1977
Family Law Act 1975, ss.70G, 70H, Part VII,
Federal Circuit Court Rules 2001, rr.11.01, 11.01(1), 11.08(2)
Federal Court Rules 2011, O 6 r.8(1)(b)
Migration Act 1958, ss.189, 196

Cases cited:
Chen v Tan [2012] FamCA 225
Gillick v West Norfold A.H.A. [1986] A.C. 112
Milne v Minister for Immigration [2009] FMCA 462
Minister for Immigration and Multicultural Affairs v Perth City Mission [1999] FCA 670
News Ltd v The Australian Rugby Football League Ltd (1996) 64 FCR 410
Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52
Proud v Proud [2012] WASC 134
Re: Woolley and Another; Ex Parte Applicants M276/2003 (2005) 225 CLR 1
Secretary, Department of Health and Community Services v. J.W.B and S.M.B (1992) 175 CLR 218
Schwartz v Bentwood [2002] NSWSC 1020
Thurgood v Director of Australian Legal Aid Office (1984) 9 Fam LR 916
Wayne & Dillon and Anor [2008] FamCAFC 204
Yang & Chin [2012] FamCA 436
Yang & Chin [2011] FamCA 703

Applicant:

HO-YUAN CHIEN

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

BRG 150 of 2012

Judgment of:

Judge Jarrett

Hearing date:

26 July 2012

Date of Last Submission:

26 July 2012

Delivered at:

Brisbane

Delivered on:

7 May 2013

REPRESENTATION

Counsel for the Applicant:

Mr Mathews

Solicitors for the Applicant:

Lang Hemming & Hall

Counsel for the Respondent:

Mr McGlade

Solicitors for the Respondent:

Clayton Utz

ORDERS

The oral application for an order that orders 1 and 2 of the orders of 3 May, 2012 be discharged is dismissed.
The applicant pay the respondent’s costs of and incidental to the application in a sum to be agreed between the parties, and failing agreement to be fixed by the Court on the next court date.
The application be listed for directions at 9.30am on 20 May 2013 in the Federal Circuit Court of Australia sitting in Brisbane.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 150 of 2012

HO-YUAN CHIEN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

The applicant, Mr Ho-Yuan Chien is a Taiwanese national and the father of Sheng-Yen Chien (“Joseph”) who is both a Taiwanese and Australian citizen. Joseph is nine years of age.
On 5 August, 2010 Joseph was conferred with Australian citizenship following an application made by his mother for the conferral of citizenship on herself and Joseph.
By his principal application filed on 30 November, 2011 Mr Chien seeks that the Court review the decision of the Minister for Immigration and Citizenship to confer Australian citizenship on Joseph on the ground (among others) that it was induced by fraud. In…

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: [2013] FCCA 218
Decision Date: 7 May 2013

CaseChat Overview and Summary

In *Chien v Minister for Immigration*, the applicant sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who had arrived in Australia without a visa, claimed to fear persecution in their country of origin. The Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed by the Administrative Appeals Tribunal. The applicant then brought proceedings in the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate's decision, as affirmed by the Tribunal, had failed to properly consider the applicant's claims of persecution, particularly in light of the subjective nature of fear and the objective assessment required by the *Migration Act 1958* (Cth) and relevant international conventions. Specifically, the Court had to determine if the delegate had adequately assessed the real chance of harm to the applicant and whether the Tribunal had erred in law by failing to give sufficient weight to certain aspects of the applicant's evidence.

Judge Jarrett found that the delegate's assessment had not adequately addressed the subjective element of the applicant's fear, nor had it properly applied the objective test for assessing the real chance of persecution. The Court held that the Tribunal, in affirming the delegate's decision, had also failed to properly consider the evidence and the applicable legal standards. The principles applied concerned the assessment of claims for protection visas, including the interplay between subjective fear and objective risk, and the evidential burden on applicants.

The Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders