He v Minister for Immigration - [2019] FCCA 85

FEDERAL CIRCUIT COURT OF AUSTRALIA

HE v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 85

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – Tribunal not satisfied that the applicant was in a genuine de facto relationship – whether the Tribunal breached s.360 of the Migration Act 1958 (Cth) by failing to disclose an issue in the review of whether the relationship was motivated by business considerations – jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.360, 425

Migration Regulations 1994 (Cth)

Cases cited:

Hazra & Anor v Minister for Immigration & Anor [2017] FCCA 688; (2017) 319 FLR 81
Minister for Immigration v SZGUR (2011) 241 CLR 594
SZBEL v Minister for Immigration (2006) 228 CLR 152
SZJUB v Minister for Immigration [2007] FCA 1486
SZHKA v Minister for Immigration (2008) 172 FCR 1

Applicant:

CUIYI HE

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1543 of 2017

Judgment of:

Judge Driver

Hearing date:

17 December 2018

Delivered at:

Sydney

Delivered on:

4 February 2019

REPRESENTATION

Counsel for the Applicant:

Mr N Poynder

Counsel for the Respondents:

Mr M P Cleary

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 19 April 2017 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine the review application before it according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1543 of 2017

CUIYI HE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant, Ms He, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 19 April 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Ms He a temporary partner visa.
The following statement of background facts is derived from the submissions of the parties.
Ms He is a citizen of China who, on 2 November 2015, lodged an onshore application for a subclass 820/801 visa.[1] Ms He was sponsored by her de facto partner, Danny Liang.[2]
[1] Court Book (CB) 1-84
[2] CB 34-45
On 17 November 2015 the Minister’s Department wrote to Ms He[3] relevantly requesting evidence of her relationship with Mr Liang, and a statutory declaration explaining why she had withdrawn a previous application for a subclass 801 visa.[4]
[3] CB 86-93
[4] the previous subclass 801 visa application is not in evidence, but is recorded in a timeline in the primary decision as having been withdrawn on 4 November 2015: CB 232
Ms He’s migration agent subsequently provided a statutory declaration made by Ms He on 9 December 2015 explaining that the reason for the withdrawal of her previous subclass 801 visa was subject to legal professional privilege.[5]
[5] CB 97. The withdrawal of the…

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 85
Decision Date: 4 February 2019

CaseChat Overview and Summary

The applicant, He, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the Minister for Immigration's refusal to grant a partner visa. The AAT had found that He had not established that she was in a genuine de facto relationship with her sponsor, a prerequisite for the visa.

The central legal issue before the Federal Court was whether the AAT had committed a jurisdictional error by failing to disclose a specific concern to the applicant during its review. This concern related to whether the relationship was motivated by business considerations, which the applicant argued was a crucial factor in the Tribunal's adverse finding and that she was denied a proper opportunity to address it.

Justice Driver found that the AAT had indeed breached section 360 of the *Migration Act 1958* (Cth). The Court reasoned that the Tribunal had a positive obligation under section 360 to notify the applicant of any adverse information or issues that might lead to an unfavourable decision, and to provide an opportunity for the applicant to respond. The failure to disclose the specific concern about business motivations meant the applicant was denied procedural fairness, constituting a jurisdictional error.

The Court ordered that the AAT's decision be set aside and remitted to the AAT for redetermination according to law.

Orders