KEO v Minister for Home Affairs - [2020] FCCA 191

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEO v MINISTER FOR HOME AFFAIRS & ANOR

[2020] FCCA 191

Catchwords:
MIGRATION – Partner (Residence) (Class BS) (Subclass 801) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal erred in considering family violence in the context of assessing nature of relationship – whether Tribunal afforded appropriate weight to evidence – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 65, 359AA, 376, 476

Migration Regulations 1994 (Cth), reg.1.15A, cl.801.221 of sch.2

Cases cited:

Applicant:

CHARIYA KEO

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 393 of 2018

Judgment of:

Judge Kendall

Hearing dates:

20 September 2019 and 30-31 January 2020

Date of Last Submission:

31 January 2020

Delivered at:

Perth

Delivered on:

5 February 2020

REPRESENTATION

Applicant:

In person

Counsel for the First Respondent:

Mr A Gerrard

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 393 of 2018

CHARIYA KEO

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By application filed in this Court on 19 July 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 6 July 2018.
The Tribunal affirmed a decision of a delegate of the then Minister for Immigration and Citizenship (the “Minister”) to refuse the applicant a Partner (Residence) (Class BS) (Subclass 801) visa (the “visa”).
The applicant now seeks judicial review of the Tribunal’s decision. This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Tribunal.
The Court had the following materials before it:
a)the judicial review application;
b)an affidavit of the applicant sworn…

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: [2020] FCCA 191
Decision Date: 5 February 2020

CaseChat Overview and Summary

The applicant, KEO, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) concerning her Partner (Residence) (Class BS) (Subclass 801) visa application. The Minister for Home Affairs was the respondent. The core of the dispute revolved around the AAT's assessment of KEO's relationship with her sponsor, particularly in relation to allegations of family violence.

The court was required to determine whether the AAT had erred in its consideration of family violence when assessing the nature of the relationship for the purposes of the visa application. Specifically, the court considered whether the Tribunal had afforded appropriate weight to the evidence presented and whether KEO had been denied procedural fairness during the AAT proceedings. The ultimate question was whether any of these issues constituted jurisdictional error.

Judge Kendall found that the AAT had not committed jurisdictional error. The Tribunal had considered the evidence of family violence in the context of assessing the genuineness and nature of the relationship, as required. The court determined that the AAT had afforded appropriate weight to the evidence before it and had not denied KEO procedural fairness.

Consequently, the application for judicial review was dismissed.

Orders

Orders of the court

ORDERS

The application be dismissed.

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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