LAN v Minister for Immigration - [2018] FCCA 1170

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAN v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1170

Catchwords:
MIGRATION – Review of AAT decision to refuse grant of Partner (Temporary) (Class UK) visa under section 65 of Migration Act – Citizen of the Peoples Republic of China – whether future intended pregnancy able to constitute a compelling reason for not applying Schedule 3 criteria – time up to which facts are to be considered for purpose of determining whether reasons are compelling or not – application refused.

Legislation:

Migration Act 1958 (Cth), ss.65, 476(1)

Migration Regulations 1994 rr.820.21(d)(ii), Sch.3

Cases cited:

Waensila v Minister for Immigration & Anor (2016) 241FCR 121

Singh v Minister for Immigration & Anor [2015] FCCA 1196
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

Applicant:

YANG LAN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 497 of 2016

Judgment of:

Judge Egan

Hearing date:

24 April 2018

Date of Last Submission:

24 April 2018

Delivered at:

Brisbane

Delivered on:

16 May 2018

REPRESENTATION

Counsel for the Applicant:

Mr G Gunn

Solicitors for the Respondents:

Sparke Helmore

ORDERS

That the application be dismissed.
That the Applicant pay the First Respondent’s costs to be fixed.
That the matter be listed for mention at 9.30am on 16 May 2018 to determine the question of costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 497 of 2016

YANG LAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

I have before me an application for judicial review of a decision of the Administrative Appeals Tribunal (AAT) dated 2 May 2016 which affirmed a decision of a delegate of the First Respondent to refuse to grant to the Applicant a Partner (Temporary) (Class UK) (Subclass 820) Visa. Such application was filed on 31 May 2016 and was brought pursuant to section 476(1) of the Migration Act 1958 (“the Act”).
The Applicant was a citizen of the People’s Republic of China who arrived in Australia on 9 January 2008 on a Student (Class TU) (Subclass 573) Visa which expired on 9 February 2008. The Applicant was granted a further student visa which expired on 30 August 2013, following which he became an unlawful non-citizen. The Applicant was granted a Bridging Visa E on 25 September 2014.
The Applicant relies upon only two (2) of the twelve (12) grounds raised in the application for judicial review.

First Ground

The first such ground was Ground Two which reads as follows:
“The decision maker failed to afford procedural fairness specifically by not adjourning the hearing when the applicant, variously, did not follow the full meaning of proceedings, and did not use an interpreter.”
In support of that ground, the Applicant sought to rely upon an affidavit filed by him on 8 May 2016. In paragraphs 18 – 39 inclusive of that affidavit, the Applicant sought to advance an argument that the AAT member ought to have…

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 1170
Decision Date: 16 May 2018

CaseChat Overview and Summary

The applicant, LAN, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The Minister's decision was based on the applicant's alleged failure to satisfy the criteria for a protection visa under section 36(2)(b)(i) of the *Migration Act 1958* (Cth), which requires a person to hold a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The matter came before Judge Egan of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to properly consider or assess the evidence presented by the applicant regarding their claims of persecution, and whether this failure amounted to a jurisdictional error that vitiated the decision.

Judge Egan found that the delegate had failed to adequately consider the applicant's evidence concerning their fear of persecution. The delegate's assessment had overlooked or downplayed crucial aspects of the applicant's testimony and supporting documentation, leading to an incomplete and therefore unreasonable assessment of the applicant's claims. The Court applied the principles of administrative law, emphasizing that a decision-maker must genuinely consider all relevant evidence and provide reasons that are logically connected to the evidence and the grounds for the decision. The failure to do so constituted a jurisdictional error.

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

Orders