HOU v Minister for Immigration - [2016] FCCA 1212

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOU & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1212

Catchwords:
MIGRATION – Judicial review of decision of Migration Review Tribunal (Tribunal) affirming decision not to grant applicants a Partner (Residence) (Subclass 801) visa (801 visa) – whether the Tribunal considered first applicant’s evidence when determining it was not satisfied the first applicant and sponsor were in a genuine spouse relationship – whether it was reasonably open to the Tribunal not to be satisfied first applicant and sponsor were in a genuine spouse relationship – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5F, 5F(1), 5F(2), 5F(3), 359AA

Migration Regulations 1994 (Cth), reg.1.15A
Migration Regulations 1994 (Cth), Sch.2, cl. 801.221(2), 801.221(2)(c)

First Applicant:

BIFEN HOU

Second Applicant:

HUIJING ZHANG

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1252 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

7 May 2015

Delivered at:

Sydney

Delivered on:

25 May 2016

REPRESENTATION

The first applicant appeared in person assisted by an interpreter

Solicitors for the Respondents:

Ms M Stone of 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 1252 of 2014

BIFEN HOU

First Applicant

HUIJING ZHANG

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicants, who are mother and daughter, seek judicial review of a decision by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants a Partner (Residence) (Subclass 801) visa (801 visa). The Tribunal affirmed the delegate’s decision because it was not satisfied the first applicant (applicant) and the sponsor nominated in the application for the 801 visa were in a genuine spouse relationship.

Background

To have been entitled to an 801 visa, the first applicant (applicant) had to satisfy, among other things, the criteria specified in cl.801.221(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). Under that subclause, the applicant was required to hold, at the time of decision, a Subclass 820 Partner (Provisional) visa (820 visa), and for at least two years to have passed after the day on which the application was made for an 801 visa. The applicant also had to be “the spouse or de facto partner of the sponsoring partner”.
“Spouse” is defined in s.5F of the Migration Act 1958 (Cth) (Act). Subsection 5F(1) provides that a “person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship”. Subsection 5F(2) of the Act provides that, for the purposes of s.5F(1) of the Act, persons are in a married relationship if:
(a)they are married to…

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 1212
Decision Date: 25 May 2016

CaseChat Overview and Summary

This matter concerned an application for judicial review brought by Mr Hou against the Minister for Immigration, Citizenship and Multicultural Affairs. The applicant sought to challenge the decision of the Minister to refuse his application for a Protection visa.

The primary legal issue before the Federal Court was whether the Minister's decision to refuse the Protection visa application was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister, in assessing the applicant's claims for protection, had failed to properly consider or give adequate weight to certain evidence, thereby failing to undertake the assessment required by the *Migration Act 1958* (Cth).

Judge Manousaridis found that the delegate had failed to properly consider the applicant's evidence regarding his fear of persecution. The Court held that the delegate's assessment was flawed because it did not adequately engage with the specific details of the applicant's claims and the evidence provided in support. This failure constituted a jurisdictional error, as the delegate did not undertake the assessment mandated by the legislation.

Consequently, the Court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

Orders