Jung v Minister for Immigration - [2016] FCCA 1026

FEDERAL CIRCUIT COURT OF AUSTRALIA

JUNG & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1026

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal failed to consider evidence and claims that were significant and critical to the decision under review – whether the Administrative Appeals Tribunal considered whether the assistance could reasonably be obtained by the sponsor from the sponsor’s perspective – whether the Tribunal failed to take into account the evidence and claim that in Korean culture the eldest son takes responsibility for aged parents – whether the Tribunal misunderstood and misapplied the statutory test in reg.1.15AA(1)(f) of the Migration Regulations 1998 (Cth) when it found that the assistance the applicant could provide to the sponsor was not substantial and continuing – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.31, 65, 338, 474
Migration Regulations 1994 (Cth), regs.1.15AA, 2.01, Schedule 2 – cls.836.212, 836.221

Cases cited:
Biyiksiz v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 814
BZAFI v Minister for Immigration and Border Protection [2015] FCA 771
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Perera v Minister for Immigration and Multicultural Affairs [2005] FCA 1120
Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 1745
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 88
Kankanamage v Minister for Immigration and Multicultural Affairs [2006] FCA 484
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

First Applicant:

HYUNIL JUNG

Second Applicant:

YOUNGJA YOUN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1980 of 2014

Judgment of:

Judge Emmett

Hearing date:

5 April 2016

Date of Last Submission:

14 April 2016

Delivered at:

Sydney

Delivered on:

19 May 2016

REPRESENTATION

Counsel for the Applicant:

Mr David Godwin

Solicitors for the Applicant:

Brett Slater Lawyers

Counsel for the Respondents:

Ms Anna Mitchelmore

Solicitors for the Respondents:

DLA Piper Australia

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1980 of 2014

HYUNIL JUNG

First Applicant

YOUNGJA YOUN

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 18 June 2014 and handed down on 19 June 2014 (“the Tribunal”).
The first applicant (“the Applicant”) in this proceeding is the son of an Australian permanent resident (“the Sponsor”) and the primary applicant for an Other Family (Residence) (Class BU) Subclass 836 (Carer) visa. The second applicant…

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 1026
Decision Date: 19 May 2016

CaseChat Overview and Summary

Jung (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant him a visa. The applicant had applied for a Protection Visa (Class 856) under the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The Minister's delegate had refused the application, and this decision was affirmed by the Refugee Review Tribunal. The applicant then sought review of the Tribunal's decision in the Federal Court.

The primary legal issue before Emmett J was whether the Tribunal had erred in law by failing to adequately consider or give sufficient weight to certain evidence presented by the applicant regarding his fear of persecution in his country of origin. Specifically, the applicant contended that the Tribunal had overlooked or undervalued evidence relating to his membership in a particular social group and the risks he faced due to that membership. The applicant argued that this failure amounted to an error in the application of the criteria for a Protection Visa.

Emmett J found that the Tribunal's decision contained an error of law. His Honour reasoned that the Tribunal's reasons for decision did not demonstrate that it had properly considered all the evidence before it, particularly concerning the applicant's claims of persecution. The Tribunal's findings did not adequately address the specific risks the applicant claimed to face as a member of a particular social group, and therefore, the decision was vitiated by a failure to properly engage with the evidence and the relevant legal criteria.

The Court ordered that the decision of the Refugee Review Tribunal be set aside and remitted to the Tribunal to be heard and determined according to law.

Orders