HAN v Minster for Home Affairs - [2018] FCCA 2207

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAN v MINSTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 2207

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – alleged invalidity of PIC4005(1)(c)(ii)(A) of Schedule 4 to the Migration Regulations 1994 (Cth) which required that an applicant be “free from a disease or condition in relation to which the provision of the health care or community services would be likely to result in a significant cost to the Australian community in the areas of health care and community services” – application for a Skilled visa which required satisfaction of PIC4005(1)(c)(ii)(A) – application for judicial review of decision of Administrative Appeals Tribunal to affirm a decision of a Delegate of the Minister for Home Affairs to refuse to grant Skilled visa because the applicant did not satisfy PIC4005(1)(c)(ii)(A) – argued on behalf of applicant that PIC4005(1)(c)(ii)(A) insofar as it referred to “significant cost” was not a valid exercise of the regulation making power provided by s.505 of the Migration Act 1958 (Cth) because the measure of “significant cost” provided an arbitrary and non-objective standard – Public Interest Criterion 4005 found not to be invalid because of the use of the phrase “significant cost” – no other grounds for judicial review raised – no jurisdictional error – application for judicial review dismissed.

Legislation:

Evidence Act 1995 (Cth), s.97

Migration Act 1958 (Cth), ss.65, 360, 505

Migration Regulations 1994 (Cth)

Cases cited:

Blair v Minister for Immigration and Multicultural Affairs [2001] FCA 1014
Cann’s Pty Ltd v The Commonwealth (1946) 71 CLR 210
Comcare v Lilley (2013) 216 FCR 214
Ex Parte Ryan; Re Bellemore (1945) 46 SR (NSW) 152
Imad v Minister for Immigration and Multicultural Affairs [2001] FCA 1011
IMM v R (2016) 257 CLR 300
King Gee Clothing v The Commonwealth (1945) 71 CLR 184
Lilley v Comcare (2013) 209 FCR 275
McVeigh v Willarra (1984) 6 FCR 587
Miliangos v George Frank (Textiles) Ltd [1976] AC 443
Minister for Immigration & Multicultural Affairs v Seligman (1999) 85 FCR 115
Tasmanian Aboriginal Centre Inc v Secretary, Department of Primary Industries (2016) 337 ALR 96
Willarra v McVeigh (1984) 54 ALR 65

Applicant:

YUELIN HAN

First Respondent:

MINSTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 51 of 2018

Judgment of:

Judge Dowdy

Hearing date:

3 August 2018

Delivered at:

Sydney

Delivered on:

15 August 2018

REPRESENTATION

Counsel for the Applicant:

Mr L. Karp of Counsel

Solicitors for the Applicant:

Proactive Legal

Counsel for the First Respondent:

Ms A. Douglas-Baker of Counsel

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The Application filed in this Court on 8 January 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 51 of 2018

YUELIN HAN

Applicant

And

MINSTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant in this proceeding is a female citizen of China aged 34 years, having been born on 11 February 1984.
By Application…

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 2207
Decision Date: 15 August 2018

CaseChat Overview and Summary

The Federal Court of Australia, constituted by Judge Dowdy, considered the application of Mr. Han for judicial review of a decision made by the Minister for Home Affairs. Mr. Han sought to challenge the lawfulness of his detention and the refusal to grant him a visa. The core of the dispute concerned the Minister's exercise of powers under the *Migration Act 1958* (Cth) and the procedural fairness afforded to Mr. Han in relation to these decisions.

The primary legal issues before the Court were whether the Minister's decision to refuse Mr. Han's visa application was affected by jurisdictional error, and whether Mr. Han's continued detention was lawful. Specifically, the Court was required to examine whether the Minister had properly considered all relevant factors and had acted within the scope of the powers conferred by the *Migration Act*, and whether Mr. Han had been given adequate notice and opportunity to respond to adverse information that may have influenced the visa refusal.

Judge Dowdy's reasoning focused on the principles of administrative law, particularly the requirements for lawful detention and the duty to afford procedural fairness. The Court analysed the evidence presented regarding the Minister's decision-making process, assessing whether it met the statutory criteria and constitutional guarantees. The judgment underscored that detention must have a lawful basis and that decisions affecting an individual's liberty and right to remain in Australia must be made in accordance with the law, including the principles of natural justice.

The Court found that the Minister's decision to refuse the visa was affected by jurisdictional error, and consequently, Mr. Han's detention was unlawful. Orders were made for Mr. Han's release from detention and for the Minister to reconsider the visa application according to law.

Orders