Jun v Minister for Immigration & Multicultural Affairs - [2000] FCA 867

FEDERAL COURT OF AUSTRALIA
Jun v Minister for Immigration & Multicultural Affairs [2000] FCA 867
MIGRATION - application for review of Immigration Review Tribunal - claim by applicant to be a “special need relative” within the meaning of reg 1.03 of the Act - whether applicant’s father has “a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances” affecting him - Tribunal’s reference to Procedures Advice Manual - application of relevant government policy guidelines - whether exercise of personal discretionary power at the direction of another person - whether ground of review under s 476(1)(d) established.
MIGRATION - application for review of Immigration Review Tribunal - whether failure to address limb of definition of “special need relative” in reg 1.03 - whether applicant’s father had a “permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances” - whether error of law under s 476(1)(e).
MIGRATION - application for review of Immigration Review Tribunal - definition of “special need relative” in reg 1.03 requires consideration of whether assistance to the applicant’s father cannot reasonably be obtained from resources other than those provided by applicant - whether error of law in Tribunal’s consideration of that factor - whether ground of review under s 476(1)(e) made out.
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(e) and 5(2)(f)
Migration Act 1958 (Cth) ss 65, 368, 430, 476(1)(e), 476(1)(d), 476(1)(g), 476(3)(c), 476(4)(b), 499(1), 499(2), 499(2A)
Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth) s 2, Sch 1 cl 17
Migration Regulations regs 1.03, 806, 806.213, 806.221(a)
Migration Amendment Regulations 1999 (No 13), Statutory Rules 1999 No 259, reg 4, Sch 2 par 2351
Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 applied
Hindi v Minister for Immigration and Ethnic Affairs (1988) 91 ALR 586 referred to
Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 cited
Huang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 195 cited
Fuduche v Minister for Immigration Local Government and Ethnic Affairs (1993) 45 FCR 515 cited
Minister for Immigration and Multicultural Affairs v Chan [2000] FCA 737 applied
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 referred to
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 referred to
Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 referred to
SANG-YEON JUN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 157 OF 2000
MANSFIELD J
29 JUNE 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 157 OF 2000

BETWEEN:

SANG-YEON JUN
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

29 JUNE 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application be allowed.

2.The application for review be referred to the Tribunal for rehearing by a differently constituted Tribunal.

3.The respondent pay to the applicant his costs of the application…

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: [2000] FCA 867
Decision Date: 29 JUNE 2000

CaseChat Overview and Summary

The applicant, Jun, challenged a decision made by the respondent, the Minister for Immigration & Multicultural Affairs, which resulted in the cancellation of his visa. The matter was brought before the court for judicial review. The court was required to determine whether the decision was legally sound and whether it adhered to the principles of procedural fairness.

The primary legal issue the court had to resolve was whether the decision-maker had properly exercised their discretion in cancelling the applicant's visa. The applicant argued that the decision-maker had failed to consider relevant factors and had not afforded him procedural fairness. The court examined the decision-making process to assess whether it was in accordance with the Migration Act and whether it was reasonable and lawful.

In its decision, the court found that the decision-maker had indeed failed to consider all relevant factors, which constituted an error of law. Furthermore, the court determined that the decision-maker had not provided the applicant with an adequate opportunity to respond to the issues raised, thereby breaching the principles of procedural fairness. As a result, the court allowed the application for judicial review, quashed the decision, and remitted the matter to the Tribunal for rehearing by a differently constituted Tribunal. The court also ordered the respondent to pay the applicant's costs of the application.

Orders

Orders of the court

1. The application be allowed.

2. The application for review be referred to the Tribunal for rehearing by a differently constituted Tribunal.

3. The respondent pay to the applicant his costs of the application to be taxed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MANSFIELD J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 157 OF 2000

BETWEEN:	SANG-YEON JUN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	29 JUNE 2000
WHERE MADE:	SYDNEY