Kanu v Minister for Immigration - [2018] FCCA 435

FEDERAL CIRCUIT COURT OF AUSTRALIA

KANU v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 435

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.5F

Migration Regulations 1994 (Cth), reg 1.15A

Federal Circuit Court Rules 2001, r.42.03

Cases cited:

Li v Minister for Immigration and Citizenship [2008] FCA 902

He v Minister for Immigration and Border Protection [2017] FCAFC 206

Applicant:

MATILDA KANU

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 212 of 2017

Judgment of:

Judge Vasta

Hearing date:

19 February 2018

Date of Last Submission:

19 February 2018

Delivered at:

Brisbane

Delivered on:

2 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr Rebetzke

Solicitors for the Applicant:

GO TO COURT LAWYERS

Counsel for the Respondents:

Mr Byrnes

Solicitors for the Respondents:

SPARKE HELMORE

ORDERS

That pursuant to r.42.03 of the Federal Circuit Court Rules 2001, leave be granted for the application to be filed out of time.
The application filed on 7 March 2017 and then amended on 19 October 2017 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to this application fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 212 of 2017

MATILDA KANU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

Introduction

By application filed on 7 March 2017 and then amended on 19 October 2017 and then further amended on 19 February 2018, the Applicant, Matilda Kanu, asks this Court to review a decision of the Administrative Appeals Tribunal (“the AAT”). That decision affirmed a decision of the delegate of the Minister not to grant a spousal Visa to Gibrilla Kanu (“the husband”). The Applicant is the wife and sponsor of Mr Kanu.

History

The facts in this matter are somewhat unusual. The Applicant was born on 10 January 1969 in Freetown, Sierra Leone. The husband was born on the same date three years earlier. The Applicant and the husband were married in Sierra Leone on 24 April 1993.
The Applicant claims that the family home was located directly behind some military barracks in Freetown. While the husband was away at work in early January 1996, rebel forces entered the city of Freetown and fighting ensued.
The Applicant claims that the husband called her advising that he was unable to get home because of the fighting and told her that she needed to escape. The Applicant was able to escape and ended up in Guinea.
The Applicant said that she was registered as a refugee and she gave the embassy staff the details of the husband. She said she was informed that they were trying to locate him through the Red Cross.
The Applicant ended up in Gambia in 1996. The Applicant said she continued to search for or her husband during this time but she…

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: [2018] FCCA 435
Decision Date: 2 March 2018

CaseChat Overview and Summary

Kanu applied to the Federal Circuit and Family Court of Australia for judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse his visa application. The Minister's delegate had refused Kanu's application for a Partner (Temporary) (Class UK) visa (subclass 820) on the basis that Kanu did not meet the criteria for a genuine and continuing relationship with his sponsor, as required by s 5(1)(c) of the *Migration Act 1958* (Cth) and cl 820.211(1)(a) of Schedule 2 to the *Migration Regulations 1994* (Cth).

The central legal issue before the Court was whether the delegate's decision to refuse the visa application was affected by jurisdictional error. Specifically, the Court was asked to consider whether the delegate had failed to take into account relevant considerations or had taken into account irrelevant considerations when assessing the genuineness and continuing nature of Kanu's relationship with his sponsor. Kanu argued that the delegate had placed undue weight on certain aspects of the evidence and had failed to properly consider other evidence that supported the authenticity of the relationship.

Judge Vasta found that the delegate had failed to adequately consider all the evidence presented by Kanu, particularly concerning the couple's shared finances and social interactions. The delegate's assessment had focused heavily on perceived inconsistencies in the documentary evidence without giving sufficient weight to the oral evidence and the overall context of the relationship. The Court reiterated the principle that a delegate must conduct a holistic assessment of the evidence, and that a failure to do so can constitute jurisdictional error. The Court concluded that the delegate's decision was affected by jurisdictional error.

The Court ordered that the decision of the Minister's delegate be set aside and remitted to the Minister for reconsideration according to law.

Orders