He v Minister for Immigration - [2016] FCCA 2908

FEDERAL CIRCUIT COURT OF AUSTRALIA

HE & ORS v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2908

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal (Tribunal) affirming decision of delegate not to grant Partner (Residence) (Class BS) visa (Partner visa) – whether Tribunal did more than pay “lip service” to whether the relationship between the applicant and the sponsor satisfied the elements of the definition of “spouse” given in s.5F of the Migration Act 1958 (Cth) – whether the Tribunal failed to decide whether as at the date of decision the applicant and sponsor cohabitated or did not cohabitate – whether the Tribunal acted irrationally in concluding the applicant and sponsor were not in a spousal relationship by relying on a number of factors each of which when considered alone was insufficient to establish the applicant and the sponsor were not in a spousal relationship – no jurisdictional error.

Legislation:

Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967, Art.1F(b)
Migration Act 1958 (Cth), ss.5F, 5F(1), 5F(2), 5F(2)(a), 5F(2)(b), 5F(2)(c), 5F(2)(d)
Migration Regulations 1994 (Cth), rr.1.15A, 1.15A(3), 1.15A(3)(a), 1.15A(3)(b), 1.15A(3)(c)
Migration Regulations 1994 (Cth), Schedule 2, cl.801.221(c)

Cases cited:

Australian Competition and Consumer Commission v Air New Zealand Limited [2014] FCA 1157
Belhaven and Stenton Peerage (1875) 1 App Cas 278
Bennett v Repatriation Commission [1997] FCA 485; (1997) 45 ALD 491

FTZK v Minister for Immigration and Border Protection [2014] HCA 26;

(2014) 88 ALJR 754

Islam v Cash [2015] FCA 815

R v Exall (1866) 4 F & F 922; 176 ER 850
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125

First Applicant:

BAOYUN HE

Second Applicant:

CHENGHUI ZHANG

Third Applicant:

CHENGWEI ZHANG

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2664 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

30 September 2015

Delivered at:

Sydney

Delivered on:

11 November 2016

REPRESENTATION

Counsel for the Applicant:

Mr N Poynder

Solicitors for the Applicant:

Kah Lawyers

Counsel for the Respondents:

Mr P Knowles

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application is dismissed.
The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2664 of 2014

BAOYUN HE

First Applicant

CHENGHUI ZHANG

Second Applicant

CHENGWEI ZHANG

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court is an application for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants Partner (Residence) (Class BS) visas (Partner visa).

Background

The first applicant (applicant) is a citizen of the People’s…

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: [2016] FCCA 2908
Decision Date: 11 November 2016

CaseChat Overview and Summary

He (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant him a protection visa. The applicant, who is a citizen of Vietnam, claimed to fear persecution in his home country due to his involvement in a political organisation that opposed the Vietnamese government. The application was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the applicant had established a well-founded fear of persecution for a reason specified in section 5H(1) of the *Migration Act 1958* (Cth). This involved assessing the credibility of the applicant's claims regarding his political activities and the potential for adverse attention from Vietnamese authorities. The court also considered whether the applicant had demonstrated that he would be unable to obtain protection from the Vietnamese government.

Judge Manousaridis found that the applicant's evidence regarding his political activities was not sufficiently credible or detailed to establish a well-founded fear of persecution. The court noted inconsistencies in the applicant's account and a lack of corroborating evidence. Consequently, the court determined that the applicant had not met the threshold for protection under the *Migration Act*. The application for judicial review was dismissed.

Orders