Legal Research
Cases
He v Minister for Immigration

He v Minister for Immigration

Link copied

Case Copied 29 April 2020 24 min read

Contents

On this page

FEDERAL CIRCUIT COURT OF AUSTRALIA

HE v MINISTER FOR IMMIGRATION

[2020] FCCA 986

Catchwords:
MIGRATION – Delegate of Minister for Immigration and Border Protection – TU580 student guardian visa subject to condition 8534 – no further stay condition – application to waive the no further stay condition – delegate satisfied that there were compassionate circumstances – delegate not satisfied that there were compelling circumstances – whether the delegate considered the circumstances as a whole.

Legislation:
Migration Act 1958, s.41(2A)
Migration Regulations 1994, r.2.05(4)

Cases cited:
MZWPD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1095
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, (2015) 148 ALD 206; (2015) 327 ALR 8; (2015) 90 ALJR 197; [2015] HCA 50
Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146, (2016) 344 ALR 1; [2016] FCAFC 177
Terera v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 335; [2003] FCA 1570
Yaacoub vMinister for Immigration and Border Protection [2018] FCAFC 39

Applicant:

XIZHU HE

Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

File number:

MLG 980 of 2017

Judgment of:

Judge Riley

Hearing date:

15 November and 6 December 2019

Date of last submission:

6 December 2019

Delivered at:

Melbourne

Delivered on:

29 April 2020

REPRESENTATION

Counsel for the applicant:

Andrew Yuile

Solicitors for the applicant:

Belleli King & Associates

Counsel for the respondent:

Natalie Campbell

Solicitors for the respondent:

DLA Piper Australia

ORDERS

The application filed on 15 May 2017 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 980 of 2017

XIZHU HE

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection. In that decision, the delegate refused to grant the applicant a waiver of a condition of her last held visa which prohibited her from lodging a partner visa application onshore. The relevant condition was condition 8534, which is also known as the no further stay condition. It was common ground that this court is able to review the delegate’s decision in the circumstances of this case.

Background

The applicant summarised the background to this matter in her submissions filed on 18 October 2019 as follows:
3.Ms He arrived in Australia on 1 November 2007 and began a de facto relationship with her partner very shortly thereafter, on 30 November 2007.[1] The couple have been together ever since,[2] now some 12 years, as de facto partners.
[1] Court Book (CB) 42.
[2] See the letter form the agent in support of the waiver, at CB 4.
4.Ms He’s partner, Mr Holder, operated a business consisting of a small farm producing Asian vegetables. The evidence to the delegate was that Ms He…

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 He 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: [2020] FCCA 986
Decision Date: 29 April 2020

CaseChat Overview and Summary

This matter concerned an appeal by Ms He against a decision of the Minister for Immigration. The central dispute revolved around whether the decision maker had properly considered the cumulative effect of the claims made by Ms He in support of a waiver application. Ms He argued that while individual aspects of her claims were considered, their combined impact, particularly in relation to her critical caring role and business support for her partner, Mr Holder, had not been adequately assessed.

The legal issue before the court was whether the delegate's assessment of Ms He's circumstances, specifically her contribution to her partner's business and her caring role, had failed to consider the cumulative effect of these factors. Ms He contended that this failure was critical to a proper appreciation of her case, as the individual events, when viewed in isolation, might not have appeared significant, but taken together, they demonstrated a compelling need for her presence in Australia to maintain the viability of the business and support her partner's declining health.

The court, referencing established legal principles, noted that decision makers must consider evidence cumulatively. It drew a parallel with previous cases where tribunals had been found to have considered claims in isolation rather than assessing their combined impact. The court indicated that the delegate's assertion of considering the applicant's circumstances "as a whole" appeared formulaic and lacked specific reasoning to demonstrate that the cumulative effect of Ms He's contributions and caring role had been properly appreciated. The court was to determine if the delegate's approach, by dealing with complaints in a piecemeal fashion, had led to a failure to recognise the interconnectedness and overall significance of Ms He's circumstances.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

It is well established that decision makers in matters such as this must consider the evidence cumulatively. For example, in MZWPD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1095, Weinberg J said that:63I acknowledge that the Tribunal’s reasons for decision are thorough and appear to be comprehensive. Indeed, they run to some fifty-seven pages of closely typed text. However, I am not satisfied that the Tribunal understood that its task in this case went beyond simply setting out in detail every complaint that the husband put forward, and then adjudicating upon each complaint individually.…72It is true that at one point, towards the very end of its reasons for decision, the Tribunal stated:“Having considered the evidence as a whole, the Tribunal is not satisfied that the [husband] is a person to whom Australia has protection obligations …” (emphasis added)73The difficulty is that this statement appears after the Tribunal has already considered each claim in isolation, and separately held that there was no evidence to suggest that anti-Semitism had anything to do with what had occurred. In a sense, therefore, it is literally true that the Tribunal had considered the evidence “as a whole”. However, that is not the sense in which the Tribunal was obliged to perform its task. It had to consider whether, on the facts as found, the various events described, taken together, were in any way the product of anti-Semitism.74There is nothing in either the structure or content of the Tribunal’s reasons to suggest that it in fact approached the matter in this way. Rather, the Tribunal appears to have dealt with the husband’s complaints in a somewhat piecemeal fashion. It simply set out each complaint and then declined to draw the inference that the event had been occasioned by anti-Semitism immediately thereafter. Of course, if one views a series of events in isolation, there is less likelihood that one will attribute to them a common cause. The delegate said that she had considered the applicant’s circumstances as a whole: para 3 on page 4 of the reasons for decision: CB67. However, the applicant argued the delegate’s assertion in that regard was formulaic, unsupported by specific reasons, and should not be accepted. More particularly, the applicant said in paragraph 14 of her written submissions to this court filed on 18 October 2019 that her argument was that:The short point is that the delegate, although considering the individual aspects of the claims made by Ms He in support of the waiver, did not consider the cumulative effect of those claims. This was critical to a proper appreciation of the case being put on her behalf. The argument for the applicant ran as follows:a.Ms He had been with her partner for a long time, and had been supporting him in his business during that time. Her influence in that regard had been an important part of its success.b.More recently, and from at least 2016, Mr Holder had struggled with lower back pain, ultimately diagnosed as caused by the degenerative back condition.c.This placed severe restrictions on Mr Holder’s ability to conduct the business.d.It was only with the increased support of Ms He in Australia that the business could remain viable and that Mr Holder could cope with his decreasing mobility and increasing pain. Ms He performed a critical caring role as well as being an important support to the business. Without Ms He in Australia, it was likely that the business would have to fold.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.