Huang v Minster for Home Affairs - [2019] FCCA 1764

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUANG v MINSTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 1764

Catchwords:
MIGRATION – Temporary Work (Skilled) visa – applicant does not hold approved nomination for position at time of hearing before Tribunal – where Tribunal refused adjournment – where Tribunal had impugned credit of applicant in a related proceeding – judicial review – procedural fairness – whether refusal to adjourn was unreasonable – legal unreasonableness – apprehended bias – jurisdictional error – where Tribunal identified applicable principles and undertook detailed consideration of facts – application refused.

Legislation:

Migration Act 1958 (Cth), ss.65, 140GB, 359A, 363, 477

Migration Regulations1994 (Cth), reg.2.72, sch.2 cl.457.223

Cases cited:

Adhikaree v Minister for Immigration and Border Protection [2014] FCCA 621

Adhikaree v Minister for Immigration and Border Protection [2014] FCA 564

ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30

Chhetri v Minister for Immigration and Border Protection [2015] FCCA 3101

Chhetri v Minister for Immigration and Border Protection [2016] FCA 734

Deputy Commissioner for Taxation v Cumins (2008) 101 ALD 78

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Isbister v Knox City Council [2015] HCA 20

Livesey v New South Wales Bar Association (1983) 151 CLR 288

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427

Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68

Nutritional Choice Australia Pty Ltd v Minister for Home Affairs [2019] FCCA

1754

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

Vakauta v Kelly (1989) 167 CLR 568

Westpac Banking Corporation v Carver (2003) 126 FCR 113

Applicant:

YUNLING HUANG

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1884 of 2016

Judgment of:

Judge A Kelly

Hearing date:

9 July 2018

Date of Last Submission:

9 July 2018

Delivered at:

Melbourne

Delivered on:

27 June 2019

REPRESENTATION

Counsel for the Applicant:

Ms C. Symons

Solicitors for the Applicant:

Tahota Law Firm

Counsel for the Respondents:

Mr A. Yuile

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The name of the first respondent be amended in the title of the proceeding to Minister for Home Affairs.
The amended application filed on 12 June 2018 be dismissed.
The applicant pay the costs of the first respondent fixed at $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1884 of 2016

YUNLING HUANG

Applicant

And

MINSTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By an amended application filed on 12 June 2018, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 August 2016 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant (Ms Huang) a Temporary Business Entry (Class UC) visa under s 65 of the Migration…

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 1764
Decision Date: 27 June 2019

CaseChat Overview and Summary

Huang (the applicant) sought judicial review of a decision by the Minister for Home Affairs (the respondent) to refuse to grant her a visa. The applicant had applied for a Partner (Temporary) (Class UK) visa. The refusal was based on the applicant failing to meet the character requirements of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth), specifically concerning the applicant's criminal record. The matter came before Judge A Kelly in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in law in their assessment of the applicant's character, particularly in relation to the application of Schedule 4 of the Migration Regulations. This involved determining whether the delegate had properly considered all relevant factors, including the applicant's rehabilitation and the potential impact of the refusal on her family, and whether the delegate had adequately discharged their duty to provide reasons for the decision.

Judge A Kelly found that the delegate had failed to properly consider the applicant's evidence of rehabilitation and had not adequately explained how the applicant's criminal history outweighed the positive factors presented. The Court held that the delegate's reasons for decision were insufficient and did not demonstrate a proper balancing of the competing considerations required by the legislation. The Court applied the principles of administrative law, emphasizing the importance of procedural fairness and the need for decision-makers to provide adequate and intelligible reasons for their decisions.

The Court quashed the decision of the Minister to refuse the visa and remitted the application to the respondent for reconsideration according to law.

Orders