Jiang v Minister for Immigration - [2016] FCCA 360

FEDERAL CIRCUIT COURT OF AUSTRALIA

JIANG v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 360

Catchwords:
MIGRATION – Judicial review – decision of Migration Review Tribunal – Partner (Temporary) Class UK visa – applicant fifth wife of sponsor – whether Tribunal adopted an incorrect interpretation of regulation concerning maximum number of partner visas able to be sponsored by the other partner – whether compelling circumstances – whether jurisdictional error.

PRACTICE AND PROCEDURE – Judicial comity – previous decision of Court on same issue.

STATUTORY INTERPRETATION – Use of language actually employed – text to be considered in context.

WORDS AND PHRASES – “relevant permission” – “compelling circumstances”.

Legislation:

Migration Act 1958 (Cth), ss.65(1), 476

Migration Regulations 1994 (Cth), reg.1.20J, Sch.2, cll.820.211, 820.221(4) (and Explanatory Statement)
Migration Regulations (Amendment) 1996 No. 211 (Cth) (and Explanatory Statement)
Migration Regulations (Amendment) 1997 No. 109 (Cth) (and Explanatory Statement)

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27; (2009) 83 ALJR 1152; (2009) 73 ATR 256; (2009) 260 ALR 1; (2009) ATC 20-134
Alvaro v Legalwest Pty Ltd [2013] FCCA 1799
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503; (2012) 87 ALJR 98; (2012) 84 ATR 1; (2012) 293 ALR 257; (2012) 91 ACSR 359; (2012) ATC 20-361
Devonshire v Magellan Powertronics Pty Ltd & Ors [2013] FMCA 207; (2013) 275 FLR 273; (2013) 231 IR 198
Liu v Minister for Immigration & Border Protection [2015] FCA 1368
Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration & Multicultural Affairs v Yusuf[2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
MZYPZ v Minister for Immigration & Citizenship [2012] FCA 478; (2012) 127 ALD 510
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297
Wu v Minister for Immigration & Anor [2016] FCCA 290

Applicant:

MIN JIANG

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 144 of 2015

Judgment of:

Judge Lucev

Hearing date:

19 February 2016

Date of Last Submission:

19 February 2016

Delivered at:

Perth

Delivered on:

25 February 2016

REPRESENTATION

For the Applicant:	In person
Counsel for the First Respondent:	Mr P Macliver

For the Second Respondent:	Submitting appearance, save as to costs
Solicitors for the Respondents:	Sparke Helmore Lawyers

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 144 of 2015

MIN JIANG

Applicant

And

MINISTER…

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 360
Decision Date: 25 February 2016

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision made by the Migration Review Tribunal. The applicant, Ms. Jiang, sought a Partner (Temporary) Class UK visa, being the fifth wife of the sponsor. The Minister for Immigration was the respondent.

The primary legal issues before the Court were whether the Tribunal had erred in its interpretation of the Migration Regulations 1994 (Cth) concerning the maximum number of partner visas that could be sponsored by an individual, and whether the Tribunal had failed to properly consider the existence of "compelling circumstances" as required by the regulations. The Court was also asked to consider whether any such error constituted a jurisdictional error.

In its reasoning, the Court noted the principle of judicial comity, acknowledging a previous decision of the Court on the same issue. The Court emphasised that statutory interpretation requires consideration of the language actually employed by Parliament, read in its proper context. Applying this principle, the Court found that the Tribunal had indeed adopted an incorrect interpretation of the relevant regulation, which limited the number of partner visas a sponsor could hold. Consequently, the Tribunal’s subsequent finding that there were no compelling circumstances justifying an exception to this limit was vitiated by that initial error.

The Court found that a jurisdictional error had occurred. The application for judicial review was therefore upheld, and the decision of the Migration Review Tribunal was set aside.

Orders