Le v Minister for Immigration - [2019] FCCA 445

FEDERAL CIRCUIT COURT OF AUSTRALIA

LE v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 445

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal erred in finding that there was non-compliance with s.101 of the Migration Act 1958 (Cth) – whether the Administrative Appeals Tribunal erred in finding that the applicant’s answer that he was not “related to his partner by blood” was an incorrect answer – whether the Administrative Appeals Tribunal erred in failing to give information to the applicant for comment – whether failing to give certain information to the applicant was a material breach – whether giving information to the applicant would have resulted in a different decision – whether the Administrative Appeals Tribunal breached s.362A of the Migration Act 1958 (Cth) in failing to give the applicant the documents the subject of a s.375A certificate – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 12, 100, 101, 109, 362A, 375A, 474, 476
Migration Regulations 1994 (Cth), reg.2.41

Cases cited:

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Islam v Minister for Immigration (2007) 158 FCR 579
Adelaide Motors v Federal Commissioner for Taxation (1942) 66 CLR 436
Himley Estates Ltd v Commissioners of Inland Revenue (1933) 1 K.B. 482
Salama v Minister for Immigration & Anor [2017] FCA 2
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
Sandhu v Minister for Immigration (2015) 236 FCR 63
Singh v Minister for Immigration [2017] FCA 1443
Minister for Immigration v Dhillon (2014) 227 FCR 525

Applicant:

CHI CONG LE

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1104 of 2017

Judgment of:

Judge Emmett

Hearing date:

19 February 2019

Date of Last Submission:

19 February 2019

Delivered at:

Sydney

Delivered on:

13 March 2019

REPRESENTATION

Counsel for the Applicant:

Mr Nicholas Poynder

Solicitors for the Applicant:

Kah Lawyers

Counsel for the Respondents:

Mr Martin Smith

Solicitors for the Respondents:

Sparke Helmore

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1104 of 2017

CHI CONG LE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 22 March 2017 (“the Tribunal”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 28 September 2016 cancelling the applicant’s Class BS (Subclass 801) (Spouse) visa.

The proceeding before this Court

The applicant was represented before this Court by Mr Nicholas Poynder, of counsel.
By consent, leave was granted to the applicant to rely on an Amended Application, filed in Court identifying the following grounds:
“1. The second respondent erred in affirming the delegate's decision under s 109 under…

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 445
Decision Date: 13 March 2019

CaseChat Overview and Summary

Le and the Minister for Immigration were the parties in this matter before Emmett J of the Federal Court of Australia. The dispute concerned the Minister's decision to refuse to grant Mr. Le a visa. Mr. Le sought judicial review of this decision.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister, in assessing Mr. Le's application, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Emmett J reasoned that the delegate's assessment of Mr. Le's application had been flawed. His Honour found that the delegate had failed to properly consider the evidence provided by Mr. Le regarding his claims, particularly in relation to the subjective elements of the assessment. The legal principle applied was that a failure to consider relevant evidence or a consideration of irrelevant matters can constitute a jurisdictional error, rendering the decision invalid.

The Court found that the Minister's decision was affected by jurisdictional error. Consequently, Emmett J set aside the decision of the Minister to refuse the visa and remitted the matter to the Minister for reconsideration according to law.

Orders