Gao v Minister for Immigration - [2019] FCCA 1

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAO v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – Tribunal not satisfied that the applicant is a genuine temporary student entrant – whether the applicant was afforded a fair hearing opportunity, whether the Tribunal was biased or whether the Tribunal made factual errors which impacted upon the decision considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.360, 360A, 361, 499

Migration Regulations 1994 (Cth)

Cases cited:

Abebe v The Commonwealth of Australia (1999) 197 CLR 510

BKO16 v Minister for Immigration (No 2) [2018] FCA 1850

BUC15 & Ors v Minister for Immigration & Anor [2016] FCCA 1010

CSP16 v Minister for Immigration & Anor [2018] FCCA 3746

Helow v Home Secretary [2008] 1 WLR 2416

Johnson v Johnson [2000] HCA 48

McGovern and Anor v Ku-Ring-gai Council [2008] NSWCA 209

Minister for Immigration v Jia Legeng (2001) 205 CLR 507

Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

NADH v Minister for Immigration (2004) 214 ALR 264

Nigam v Minister for Immigration [2017] FCA 106

Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425

S14/2002 v Refugee Review Tribunal [2004] FCAFC 171

SZMUF v Minister for Immigration [2009] FCA 182

SZOAF v Minister for Immigration [2010] FCA 431

SZRMQ v Minister for Immigration [2013] FCAFC 142

SZTEX v Minister for Immigration [2014] FCA 1269

Tupkovic v Minister for Immigration [2017] FCA73

WAFK v Minister for Immigration (2003) 133 FCR 209

Applicant:

JUNCONG GAO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3015 of 2017

Judgment of:

Judge Driver

Hearing date:

28 November 2018

Date of Last Submission:

21 December 2018

Delivered at:

Sydney

Delivered on:

31 January 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr J McGovern of Clayton Utz

ORDERS

The application filed on 28 September 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3015 of 2017

JUNCONG GAO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant (Mr Gao) seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 31 August 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a temporary student visa.
The following statement of background facts is derived from initial written submissions filed on behalf of the Minister on 21 June 2018.
Mr Gao is a Chinese national who first entered Australia in 2002.[1] On 17 May 2014, he applied for the student visa.[2] On 1 August 2014, the delegate refused to grant the student visa as the delegate was not satisfied that Mr Gao satisfied the requirements of clause 573.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[3] The delegate was not satisfied that Mr…

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 1
Decision Date: 31 January 2019

CaseChat Overview and Summary

Gao (the applicant) sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed the Minister for Immigration's refusal to grant the applicant a student visa. The Tribunal had found that the applicant was not a genuine temporary entrant.

The applicant raised several grounds for review, alleging that the Tribunal failed to afford them a fair hearing, that the Tribunal exhibited bias, and that the Tribunal made factual errors that vitiated its decision. The central question before the court was whether any of these alleged failings constituted a jurisdictional error.

Justice Driver found no jurisdictional error. The court determined that the applicant had been afforded a sufficient opportunity to present their case to the Tribunal, and that the Tribunal's findings were open to it on the evidence before it. The applicant's submissions regarding bias and factual error were not substantiated to the standard required to establish jurisdictional error.

Consequently, the application for judicial review was dismissed.

Orders