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Jiang v Minister for Immigration

Jiang v Minister for Immigration

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Case Copied 3 November 2016 33 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

JIANG & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2093

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – child visa – estoppel and inconsistency of Administrative Appeals Tribunal decisions – issue estoppel – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 359AA, 430

Migration Regulations 1994 (Cth)

First Applicant:

MINRONG JIANG

Second Applicant:

STEVEN JIANG

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3463 of 2015

Judgment of:

Judge Dowdy

Hearing date:

26 April 2016

Date of Last Submission:

26 April 2016

Delivered at:

Sydney

Delivered on:

3 November 2016

REPRESENTATION

Counsel for the Applicants:

Mr P Cutler of Counsel.

Solicitors for the Applicants:

Cathay Lawyers.

Counsel for the Respondents:

Mr G Johnson of Counsel.

Solicitors for the Respondents:

Mills Oakley Lawyers.

THE COURT ORDERS AS FOLLOWS:

The Application filed in this Court on 21 December 2015 is dismissed, with costs to be determined.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3463 of 2015

MINRONG JIANG

First Applicant

STEVEN JIANG

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Nature of Proceeding

The first and second applicants are mother and son. By Application filed in this Court on 21 December 2015 they seek, by constitutional writs, to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 11 December 2015, which affirmed a decision of a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister or Department), dated 13 February 2015, refusing to grant to them a Child (Residence) (Class BT) Child (Subclass 802) visa (Child Visa).

Background

The first named applicant (Applicant) is a female citizen of China aged 26…

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 2093
Decision Date: 3 November 2016

CaseChat Overview and Summary

In *Jiang v Minister for Immigration*, the applicant, Mr. Jiang, sought judicial review of a decision by the Minister for Immigration to refuse his application for a partner visa. The dispute centred on whether the Minister had properly considered the applicant's claims of a genuine and continuing relationship with his partner, and whether the decision-maker had adequately addressed the evidence provided in support of that claim. The matter came before Dowdy J of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had acted unlawfully in refusing the partner visa application. This involved determining whether the delegate had failed to take into account relevant considerations, taken into account irrelevant considerations, or otherwise made a decision that was so unreasonable that no reasonable decision-maker could have reached it. Specifically, the Court had to consider if the delegate had properly assessed the evidence of the genuineness and continuing nature of the relationship between Mr. Jiang and his partner, as required by the *Migration Regulations 1994* (Cth).

Dowdy J reasoned that the delegate's decision-making process contained a critical flaw. The delegate had focused on a perceived lack of specific documentary evidence in certain categories, without adequately weighing the totality of the evidence presented, including statutory declarations and other forms of corroboration, which collectively demonstrated the genuine and continuing nature of the relationship. The Court applied the principles of administrative law, particularly the requirement for a decision-maker to undertake a holistic assessment of all relevant evidence and to provide adequate reasons for their findings. The delegate's failure to properly consider the cumulative effect of the evidence meant that the decision was vitiated by jurisdictional error.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders