La v Minister for Immigration - [2016] FCCA 1499

FEDERAL CIRCUIT COURT OF AUSTRALIA

LA v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1499

Catchwords:
MIGRATION – Judicial review – decision of former Migration Review Tribunal – whether criteria for Medical Treatment (Visitor) (Class UB) Subclass 602 visa met – strict time criteria – no discretion to consider compelling circumstances – whether jurisdictional error.

Legislation:

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

Migration Regulations 1994 (Cth), reg.1.16AA, Sch.2, cll.602.212, 602.213, Sch.3, cl.3001

Cases cited:
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
Kim & Ors v Minister for Immigration & Anor [2013] FCCA 962
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Singh v Minister for Immigration & Anor [2015] FCCA 1408

Applicant:

QUOC TUAN LA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 299 of 2015

Judgment of:

Judge Antoni Lucev

Hearing date:

16 May and 20 June 2016

Date of Last Submission:

20 June 2016

Delivered at:

Perth

Delivered on:

23 June 2016

REPRESENTATION

For the Applicant:

In person (with the assistance of an interpreter)

Counsel for the First Respondent:

Mr A Burgess

For the Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Sparke Helmore

ORDERS

That the application be dismissed.
That the applicant pay the first respondent’s costs in the sum of $5800 by 23 July 2016.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 299 of 2015

QUOC TUAN LA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

On 2 July 2015 the applicant, Quoc Tuan La (“Mr La”) lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse Mr La a Medical Treatment (Visitor) (Class UB) Subclass 602 visa under s.65 of the Migration Act (“Medical Treatment Visa”).
A copy of the Tribunal Decision dated 29 April 2015 is at Court Book (“CB”) 58-60.

Background

The background to the Judicial Review Application is as follows:
a)Mr La is a citizen of Vietnam: CB 3;
b)Mr La’s substantive visa, a subclass 820 visa, ceased on 29 February…

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: [2016] FCCA 1499
Decision Date: 23 June 2016

CaseChat Overview and Summary

The Federal Circuit Court of Australia heard the matter of *La v Minister for Immigration*. The applicant, Mr La, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse his application for a Partner (Temporary) (Class UK) visa. The Minister's delegate had determined that Mr La did not meet the criteria for the visa, specifically concerning the genuineness of his relationship with his sponsor.

The primary legal issue before the Court was whether the delegate's decision was affected by jurisdictional error. This involved examining whether the delegate had failed to take into account relevant considerations or had taken into account irrelevant considerations when assessing the evidence presented in support of the visa application, particularly in relation to the nature and genuineness of the spousal relationship.

Judge Lucev found that the delegate had failed to adequately consider significant portions of the evidence provided by Mr La, including documentary evidence and statements from third parties that supported the genuineness of the relationship. The delegate's assessment was therefore found to be based on an incomplete and unbalanced review of the material before them, leading to a jurisdictional error. Consequently, the Court quashed the delegate's decision.

Orders