Jung v Minister for Immigration - [2015] FCCA 1096

FEDERAL CIRCUIT COURT OF AUSTRALIA

JUNG v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1096

Catchwords:
MIGRATION – Decision of the Migration Review Tribunal – application for judicial review – alleged decision of Tribunal vitiated by jurisdictional error as a consequence of irrationality illogicality and unreasonableness – error established – decision quashed.

Legislation:

Migration Regulations 1994, sch.2

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Citizenship v Li (2013) 297 ALR 225
Minister for Immigration & Border Protection v Singh (2014) 308 ALR 280
Minister for Immigration & Multicultural Affairs & Indigenous Affairs v Yusuf (2001) 206 CLR 86

Applicant:

SUNHO JUNG

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 247 of 2014

Judgment of:

Judge Brown

Hearing date:

26 February 2015

Date of Last Submission:

26 February 2015

Delivered at:

Adelaide

Delivered on:

4 May 2015

REPRESENTATION

Counsel for the Applicant:

Mr S Ower

Solicitors for the Applicant:

McDonald Steed McGrath

Counsel for the Respondents:

Mr K Tredrea

Solicitors for the Respondents:

Sparke Helmore

ORDERS

A writ of certiorari issue removing the record of the Tribunal decision made on 3 June 2014 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to re-determine the review application before it according to law.
The first respondent pay the applicant’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 247 of 2014

SUNHO JUNG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, Sunho Jung, seeks the issue of constitutional writs to quash a decision of the Migration Review Tribunal “the MRT” made on 3 June 2014, not to grant him a medical treatment (visitor) (class UB) visa “the visa” pursuant to the provisions of the Migration Act 1958 (Cth) “the Act”.
Mr Jung is a citizen of the Republic of Korea. He was initially granted a student visa, in May of 2007, which authorised his stay in Australia, whilst he undertook a PhD in Theology at Flinders University.
On 27 February 2009, the applicant was severely injured in a motor vehicle accident in suburban Adelaide. He continues to receive treatment in respect of the sequellae of his injuries and is pursuing a claim for damages as a consequence of the accident.
Mr Jung applied for the visa on 9 March 2012. The visa has two subclasses – a short stay visa (subclass 675) and a long stay visa (subclass 685). Due to the gravity of his injuries, there is no suggestion Mr Jung is seeking a short stay visa.
The relevant visa is subject to the satisfaction of a number of conditions, at the relevant time, these conditions were set out…

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: [2015] FCCA 1096
Decision Date: 4 May 2015

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 XA) under s 36 of the *Migration Act 1958* (Cth). The Minister's delegate had refused the application, finding that the applicant did not meet the criteria for a Protection Visa. The applicant contended that the delegate's decision was affected by jurisdictional error.

The primary legal issue before the Federal Court was whether the delegate, in assessing the applicant's claims for protection, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision. Specifically, the applicant argued that the delegate had failed to properly consider the evidence relating to his fear of persecution in his country of origin and had instead relied on an incorrect understanding of the legal test for establishing a well-founded fear.

Judge Brown found that the delegate had indeed made a jurisdictional error. The delegate's reasons demonstrated a misunderstanding of the standard required to establish a "well-founded fear of persecution" under the *Migration Act*. The delegate appeared to require a higher degree of certainty than the law mandated, effectively shifting the onus onto the applicant to prove his fear was not speculative. This misapplication of the legal test meant that the delegate failed to properly engage with the evidence presented by the applicant concerning the risks he faced.

Consequently, the Federal Court quashed the delegate's decision and remitted the application for reconsideration according to law.

Orders