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 |
| 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…
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- Case
- [2015] FCCA 1096
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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