Heo v Minister for Immigration - [2020] FCCA 586

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEO & ORS v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 586

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of business visas – principal applicant found not to have requisite skills – applicants disputing the weight given by the Tribunal to material submitted after the Tribunal hearing – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.109, 116, 140GB, 359
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018
Migration Regulations 1994 (Cth)

Cases cited:

Kumar v Minister for Home Affairs & Anor [2019] FCCA 1594
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration v SZSRS & Anor (2014) 309 ALR 67
Patel & Ors v Minister for Immigration & Anor [2020] FCCA 360
Salh & Anor v Minister for Immigration & Anor [2019] FCCA 2096

First Applicant:

IN HEO

Second Applicant:

YUN SIL JUN

Third Applicant:

SOMANG HEO

Fourth Applicant:

SARANG HEO

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2471 of 2018

Judgment of:

Judge Driver

Hearing date:

16 March 2020

Delivered at:

Sydney

Delivered on:

6 April 2020

REPRESENTATION

Solicitors for the Applicant:

Mr G Seo of Garry Seo & Associates

Solicitors for the Respondents:

Ms A Wong of Mills Oakley

ORDERS

The application filed on 4 September 2018, as amended at the trial on 16 March 2020, is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2471 of 2018

IN HEO

First Applicant

YUN SIL JUN

Second Applicant

SOMANG HEO

Third Applicant

SARANG HEO

Fourth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 9 August 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant, Mr Heo, and his family temporary business entry visas.
The following statement of background facts is derived from the Minister’s outline of submissions filed on 10 March 2020.
Mr Heo is a male citizen of South Korea, who on 7 August 2015, applied for the grant of a Temporary Business Entry (Class UC) visa on the basis of his nomination in the occupation as a “wall and floor tiler”[1] sponsored by Sarang Tiling Pty Ltd.[2] The second applicant is Mr Heo’s wife and the third and fourth applicants are their minor children. Various supporting documents were provided by the applicants, including employment contracts, Mr Heo’s CV and copies of passports.[3]
[1] Court Book (CB) 1-16
[2] CB 12
[3] CB 39-62
On 24 February 2016, the delegate refused to grant the visa on the basis that she was not satisfied that Mr Heo had the skills, qualifications and employment background necessary to perform the tasks of a wall and floor tiler (ANZSCO[4] 333411) and found that he did not meet…

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: [2020] FCCA 586
Decision Date: 6 April 2020

CaseChat Overview and Summary

The applicant, Mr Heo, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the Minister for Immigration's refusal to grant business visas to himself and his co-applicants. The AAT had found that the principal applicant did not possess the requisite skills for the business visa subclass.

The central legal issue before the Federal Court was whether the AAT had committed a jurisdictional error by giving undue weight to material submitted by the applicants after the hearing had concluded, or by failing to give sufficient weight to other evidence. The applicants contended that the Tribunal's approach to this evidence was unreasonable and amounted to a failure to provide adequate reasons for its decision.

Justice Driver found that the AAT had not committed jurisdictional error. His Honour held that the Tribunal was entitled to consider all the material before it, including that submitted late, and to determine the weight it should accord to each piece of evidence. The Tribunal's reasons adequately explained its findings regarding the principal applicant's skills and the overall assessment of the application, and its approach to the evidence was not demonstrably unreasonable. The application for judicial review was therefore dismissed.

Orders