Han v Minister for Immigration - [2014] FCCA 2844

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAN & ORS v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2844

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal – whether Tribunal properly considered whether the applicant was in “exceptional circumstances” – whether Tribunal erred in its approach to PAM3 guideline – applicant’s submissions before Tribunal closely following PAM3 guideline in any event – Tribunal’s decision not disclosing jurisdictional error – application dismissed.

Legislation:

Migration Act 1958
Migration Regulations 1994, cl.856.213c(ii)(B)

Hatcher v Cohn [2004] FCA 1548 at [49]-[50]
Maan v Minister for Immigration and Citizenship [2009] FCAFC 150
Wang v Minister for Immigration [2005] FMCA 918
Jia v Minister for Immigration & Anor [2011] FMCA 422

First Applicant:

ZHIWEN HAN

Second Applicant:

LIRONG YAO

Third Applicant:

JIASHUAI HAN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 2120 of 2013

Judgment of:

Judge Burchardt

Hearing date:

23 October 2014

Date of Last Submission:

23 October 2014

Delivered at:

Melbourne

Delivered on:

12 December 2014

REPRESENTATION

Counsel for the Applicants:

Mr Guo

Solicitors for the Applicants:

G R Lawyers Pty Ltd

Counsel for the First Respondent:

Mr Goodwin

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Application filed 3 December 2013 be dismissed.
The Applicants are to pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 2120 of 2013

ZHIWEN HAN

First Applicant

LIRONG YAO

Second Applicant

JIASHUAI HAN

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

The applicant seeks judicial review of a decision of the Migration Review Tribunal dated 1 October 2013 by which the Migration Review Tribunal (“the Tribunal”) affirmed a decision of the delegate of the first respondent not to grant the First Applicant an Employer Nomination (Residence) (Class BW) visa.
The first applicant is, for practical purposes, the substantive applicant as the other two applicants are simply family members.
It should be noted that although the application to the Court was out of time, the Minister did not press any objection on that ground.
The essential submission made on the part of the applicant is that the Tribunal fell into jurisdictional error by failing properly to apply the test of “exceptional circumstances” to the applicant. A number of other criticisms are, to a greater or lesser degree, also advanced.
For the reasons that follow I do not think the applicant’s criticisms of the decision are, in the main, made out and, in any event, I do not think that the Tribunal fell into jurisdictional error. For the reasons that follow the application will be dismissed.

The Issue in the Case

It is common cause that pursuant to the Migration Regulations 1994 (“the Regulations”) the applicant required a level of English language proficiency to obtain the grant of his subclass 856 Employer Nomination (Residence) (Class BW) visa.
It is common cause that the applicant did not have that level of…

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.

Keep reading for free

Create a free CaseChat account to read Han v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] FCCA 2844
Decision Date: 12 December 2014

CaseChat Overview and Summary

The applicant, Han, sought judicial review of a decision by the Minister for Immigration to refuse to grant him a visa. The dispute concerned the Minister's assessment of whether Han met the criteria for a skilled migration visa, specifically in relation to his claimed qualifications and work experience. The matter came before Judge Burchardt of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in law in assessing the applicant's eligibility for the visa. This involved determining whether the delegate had properly considered all relevant evidence regarding Han's qualifications and employment history, and whether the delegate's conclusion that Han did not meet the prescribed criteria was reasonable and supported by the evidence.

Judge Burchardt found that the delegate had failed to adequately consider certain documentary evidence provided by the applicant, which cast doubt on the delegate's adverse findings. The Court applied the principles of administrative law, including the requirement for administrative decision-makers to undertake a proper, genuine, and logical assessment of the evidence before them. The delegate's decision was found to be vitiated by a failure to consider relevant material, leading to an unreasonable conclusion.

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

Orders