Dang v Minister for Immigration - [2018] FCCA 268

FEDERAL CIRCUIT COURT OF AUSTRALIA

DANG v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 268

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal which affirmed a decision of the Delegate of the Minister for Immigration refusing to grant the Partner visa applicant a Subclass 309 Partner visa – no jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 359A, 359AA, 424A

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration and Citizenship v SZFLX (2009) 238 CLR 507
Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052

NBKT v Minister for Immigration and Multicultural Affairs [2006] 156 FCR 419

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SZMCD v Minister for Immigration (2009) 174 FCR 415
SZTNL v Minister for Immigration and Border Protection [2015] FCA 463
SZTGV v Minister forImmigration (2015) 229 FCR 90

Applicant:

SON THANH DANG

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 698 of 2016

Judgment of:

Judge Dowdy

Hearing date:

9 March 2017

Delivered at:

Sydney

Delivered on:

13 February 2018

REPRESENTATION

Counsel for the Applicant:

Mr L Karp of Counsel

Solicitors for the Applicant:

Vietaust Lawyers

Counsel for the Respondents:

Mr T Reilly of Counsel

Solicitors for the Respondents:

Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Amended Application filed in this Court on 24 February 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 698 of 2016

SON THANH DANG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant is a male aged 55 years, having been born on 23 February 1962 in Cambodia, although of Vietnamese extraction. He appears to have been granted Australian citizenship on 19 June 1987.
On 10 February 2014 he sponsored his wife Ms Le Thi Lan (Partner visa applicant) to migrate to Australia. They had married in Vietnam on 2 January 2014. Both had previously been married and divorced with children, and the Partner visa applicant intended to migrate to Australia with her two children.
The Partner visa applicant is a Vietnamese citizen aged 43 years, having been born on 14 December 1974 in Vietnam. She applied for a Partner (Provisional) (Class UF) (Subclass 309) visa (Partner visa) on 14 March 2014 in Vietnam on the grounds of her being in a spousal relationship with the Applicant. Her children were included in her Partner visa application as secondary applicants.
By Application filed in this Court on 24 March 2016 the Applicant as sponsor sought to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (the Tribunal) dated 24 February 2016, which affirmed the decision of the Delegate (Delegate) of the Respondent, the Minister for Immigration and Border Protection (Minister) dated 16 October 2014, refusing to…

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: [2018] FCCA 268
Decision Date: 13 February 2018

CaseChat Overview and Summary

In *Dang v Minister for Immigration*, Dowdy J of the Federal Court of Australia considered an application for judicial review concerning a decision made by the Minister for Immigration. The applicant, Mr Dang, sought to challenge the lawfulness of the Minister's decision to refuse his application for a Protection visa. The core of the dispute revolved around the Minister's assessment of Mr Dang's claims for protection.

The primary legal issue before the Court was whether the Minister, in assessing Mr Dang's Protection visa application, had failed to properly consider or give sufficient weight to certain crucial aspects of his claims. Specifically, the Court was asked to determine if the Minister's delegate had overlooked or inadequately addressed evidence relating to the applicant's fear of persecution and the objective country information relevant to his situation. This involved an examination of the delegate's reasoning process and whether it met the requirements of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth).

Dowdy J's reasoning focused on the principles of administrative law, particularly the duty of a decision-maker to undertake a proper assessment of the evidence presented. The Court applied the established legal principle that a delegate must genuinely consider all relevant material and provide reasons that are not only adequate but also logically follow from the evidence. In this instance, the Court found that the delegate's assessment had failed to adequately engage with significant portions of the evidence, leading to an erroneous conclusion. The delegate's reasons were found to be deficient in that they did not demonstrate a proper consideration of the applicant's subjective fear in light of the objective country information.

Consequently, Dowdy J found that the decision of the Minister was affected by jurisdictional error. The Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders