Ko v Minister for Immigration - [2019] FCCA 2176

2FEDERAL CIRCUIT COURT OF AUSTRALIA

KO & ORS v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2176

Catchwords:
MIGRATION – Judicial review – Administrative Appeals Tribunal – business skills residence visa – ownership interest – whether applicant required to have ownership interest in same main business nominated at time of application – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.54, 55, 65, 476

Migration Regulations 1994 (Cth), reg.1.11, Sch.2, cll.845.213, 892.211, 892.214, 892.221, 892.222

Cases cited:

Berenguel v Minister for Immigration & Citizenship [2010] HCA 8; (2010) 84 ALJR 251; (2010) 264 ALR 417; (2010) 114 ALD 1
CEPU (Western Australia Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1
King Gee Clothing Company Proprietary Limited & Ors v The Commonwealth & Anor (1945) 71 CLR 184; [1945] ALR 397; (1945) 19 ALJ 239

Liang v Minister for Immigration & Citizenship & Anor [2009] FCA 189; (2009) 175 FCR 184; (2009) 107 ALD 88

Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583
See v Granich & Associates [2008] FMCA 27
Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470
WZASX v Minister for Immigration & Border Protection [2017] FCA 1415
Xiang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 64; (2004) 81 ALD 301
Yang & Ors v Minister for Immigration & Anor [2014] FCCA 1576; (2014) 289 FLR 192

Zhu & Ors v Minister for Immigration & Anor [2016] FCCA 1874

First Applicant:

Second Applicant:

Third Applicant:

Fourth Applicant:

Fifth Applicant:

FONG YUN ANNA KO

CHI YUNG ERIC YONG

ZHI WEI SEAN YONG

JONATHAN CHI HIUNG YONG

CHI CHUEN BRENDAN YONG

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 122 of 2016

Judgment of:

Judge Antoni Lucev

Hearing date:

28 February 2017

Date of Last Submission:

28 February 2017

Delivered at:

Perth

Delivered on:

12 August 2019 (by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))

REPRESENTATION

Counsel for the Applicants:

Mr T Bagley

Solicitors for the Applicants:

Myvisa Lawyers Pty Ltd

Counsel for the First Respondent:

Mr PR Macliver

For the First Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

That the application, as amended on 2 September 2016, be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 122 of 2016

FONG YUN ANNA KO

First Applicant

CHI YUNG ERIC YONG
Second Applicant

ZHI WEI SEAN YONG
Third Applicant

JONATHAN CHI HIUNG YONG
Fourth Applicant

CHI CHUEN BRENDAN YONG
Fifth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is a judicial review application (“Judicial Review Application”) under s.476 of…

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: [2019] FCCA 2176
Decision Date: 12 August 2019 (by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))

CaseChat Overview and Summary

In *Ko v Minister for Immigration*, the applicant, Mr Ko, sought judicial review of the Minister for Immigration's decision to refuse his application for a Protection Visa (Class XA). The Minister's delegate had refused the visa on the grounds that Mr Ko did not meet the criteria for a refugee or a person otherwise entitled to protection under the *Migration Act 1958* (Cth).

The primary legal issue before the Federal Circuit Court was whether the delegate's decision was affected by jurisdictional error. Specifically, the court was required to determine if the delegate had failed to consider relevant evidence or had taken into account irrelevant considerations when assessing Mr Ko's claims for protection, thereby vitiating the decision-making process.

Judge Lucev found that the delegate had failed to adequately consider crucial aspects of Mr Ko's evidence regarding his fear of persecution in his country of origin. The delegate's assessment had overlooked significant details about the nature and extent of the threats Mr Ko faced, and had not properly engaged with the expert evidence presented. This failure to properly consider relevant evidence constituted a jurisdictional error, rendering the delegate's decision invalid. Consequently, the court quashed the Minister's decision.

Orders