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GUO v Minister for Immigration

GUO v Minister for Immigration

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Case Copied 29 May 2018 11 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

GUO v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1400

Catchwords:
MIGRATION – Judicial review – Administrative Appeals Tribunal decision – citizen of China – medical treatment visa – whether application to Administrative Appeals Tribunal for review made outside time limitation – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5, 31, 476

Migration Regulations 1994 (Cth), sch.2, cll.602.212, 602.213, sch3. cll.3001, 3003, 3004, 3005

Cases cited:

Brar v Minister for Immigration & Border Protection & Anor (No.2) [2017] FCCA 1538; (2017) 322 FLR 81

Jiang v Minister for Immigration & Anor [2007] FMCA 215
Jiang v Minister for Immigration & Citizenship [2007] FCA 907

Kim & Ors v Minister for Immigration & Anor [2013] FCCA 962

R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
SZEEU & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1
Woo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1596

Applicant:

LIANGKANG GUO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 626 of 2016

Judgment of:

Judge Antoni Lucev

Hearing date:

29 May 2018

Date of Last Submission:

29 May 2018

Delivered at:

Perth

Delivered on:

29 May 2018

REPRESENTATION

For the Applicant:

In person (with the assistance of an interpreter)

Counsel for the First Respondent:

Ms G Ellis

For the Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Sparke Helmore

ORDERS

That the application be dismissed.
That the applicant pay the first respondent’s costs in the sum of $5,350 by 29 June 2018.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 626 of 2016

LIANGKANG GUO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore and later revised)

Introduction

By application filed in this Court on 21 December 2016, the applicant seeks judicial review pursuant to s.476(1) of the Migration Act 1958 (Cth) (“Migration Act”) (“Judicial Review Application”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) dated 1 December 2016, affirming a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent (“Minister”) to refuse the grant of a Medical Treatment (Visitor) (Class UB) visa (“Medical Treatment Visa”) to the applicant.

Background

The background to this matter is as follows:
a)on 6 January 2006, the applicant, a citizen of the People’s Republic of China, arrived in Australia as the holder of a Schools Sector (Class TU) (subclass 571) visa. That visa ceased on 17 August 2008;
b)on 4 May 2016, the applicant lodged an application for the Medical Treatment Visa (“Medical Treatment Visa Application”) on the basis that he needed medical consultation with a doctor for a stomach problem. The Medical Treatment Visa Application indicated that the applicant required medical care for the period 1 May 2016…

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 1400
Decision Date: 29 May 2018

CaseChat Overview and Summary

The applicant, Mr. Guo, sought judicial review of a decision by the Minister for Immigration to refuse his application for a partner visa. The dispute centred on whether the Minister had adequately considered certain evidence provided by Mr. Guo in support of his application. The matter came before Judge Antoni Lucev of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had failed to take into account relevant considerations, specifically evidence relating to the applicant's alleged fear of persecution in his home country, when assessing his partner visa application. This involved determining the scope of the Minister's duty to consider all evidence before making a decision under the relevant migration legislation.

Judge Lucev reasoned that the delegate's decision-making process did not demonstrate a proper consideration of the evidence concerning the applicant's fear of persecution. The Court found that the delegate had overlooked or inadequately assessed crucial documents that were central to the applicant's claim for protection, thereby failing to undertake a comprehensive assessment of the application. The legal principle applied was that a decision-maker must genuinely consider all relevant material placed before them, and a failure to do so can render the decision legally flawed.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders