Chou v Minister for Immigration - [2019] FCCA 2709

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHOU & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2709

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – cancellation of a partner visa – failure to inform the Minister’s Department of the cessation of the relationship on which the visa was based – whether the Tribunal review was procedurally fair, whether the Tribunal gave proper consideration to supportive evidence, whether the Tribunal erred in considering the requirements of State law for the registration of births, whether the Tribunal was biased and whether the Tribunal erred in cancelling the visa of the second applicant as a consequence of the cancellation of the first applicant’s visa considered – no jurisdictional error.

Legislation:

Births, Deaths and Marriages Registration Act 1995 (NSW), ss.15, 18, 57
Migration Act 1958 (Cth), ss.78, 101, 104, 107, 109, 140, 359AA, 359A, 360

Migration Regulations 1994 (Cth)
Status of Children Act 1996 (NSW), ss.9, 15

Cases cited:

Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473
Ara v Minister for Immigration [2017] FCA 130
ARG15 v Minister for Immigration [2016] FCAFC 174
Chou (Migration) [2018] AATA 1055

First Applicant:

CHANDY CHOU

Second Applicant:

SEBASTIAN CHOU

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 693 of 2018

Judgment of:

Judge Driver

Hearing date:

24 September 2019

Date of last submission:

15 October 2019

Delivered at:

Sydney

Delivered on:

8 November 2019

REPRESENTATION

Counsel for the Applicants:

Mr P Knowles

Solicitors for the Applicants:

Kinslor Prince Lawyers

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application as amended on 15 May 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 693 of 2018

CHANDY CHOU

First Applicant

SEBASTIAN CHOU

Second…

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: [2019] FCCA 2709
Decision Date: 8 November 2019

CaseChat Overview and Summary

Chou v Minister for Immigration concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (AAT) to affirm the cancellation of a partner visa. The applicants, Mr. Chou and Ms. Lin, challenged the AAT's decision, alleging various procedural unfairnesses and errors in its consideration of their case.

The primary legal issues before the Federal Circuit Court were whether the AAT had conducted its review in a procedurally fair manner, whether it had adequately considered the supportive evidence presented, whether it had erred in its consideration of state birth registration requirements, whether it had demonstrated bias, and whether the cancellation of Ms. Lin's visa was a lawful consequence of the cancellation of Mr. Chou's visa. The court was asked to determine if any of these issues constituted a jurisdictional error.

Judge Driver found no jurisdictional error in the AAT's decision. The court reasoned that the AAT had provided the applicants with sufficient notice of the issues to be determined and had given proper consideration to the evidence before it, including the supportive documents. The AAT's reference to state birth registration requirements was found to be relevant to the assessment of the relationship's genuineness, and no bias was established. Furthermore, the court held that the cancellation of Ms. Lin's visa was a permissible consequence of the cancellation of Mr. Chou's visa, as her eligibility was contingent on his.

Consequently, the application for judicial review was dismissed.

Orders