Le v Minister for Immigration - [2018] FCCA 3275

FEDERAL CIRCUIT COURT OF AUSTRALIA

LE v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3275

Catchwords:
MIGRATION – Bridging visa E – applicant convicted of multiple, serious criminal offences – applicant with a child in Australia – ministerial direction 63 – best interests of applicant’s child considered by the tribunal – application dismissed.

Legislation:

Migration Act 1958, ss.116, 499

Migration Regulations 1994, reg.2.43

Ministerial Direction No.63.

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
ATP15 v Minister for Immigration and Border Protection (2016) 241 FCR 92
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140

Lesianawai v Minister for Immigration and Citizenship [2012] FCA 897

Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Nweke v Minister for Immigration and Citizenship [2012] FCA 266

Pokharel v Minister for Immigration and Border Protection [2016] FCAFC 34
QSVS v Minister for Home Affairs [2018] FCA 524

QSVS v Minister for Home Affairs [2018] FCAFC 124

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
Spruill v Minister for Immigration and Citizenship [2012] FCA 1401
SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117

Vaitaiki v Minister for Immigration and Ethnic Affairs [1998] FCA 5
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133

Applicant:

HY HOANG LE

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 308 of 2018

Judgment of:

His Honour Judge Wilson

Hearing date:

10 September 2018

Date of Last Submission:

10 September 2018

Delivered at:

Melbourne

Delivered on:

15 November 2018

REPRESENTATION

Counsel for the Applicant:

Ms L Lopiccolo

Solicitors for the Applicant:

JT Lawyers Pty Ltd

Counsel for the First Respondent:

Mr C Tran

Solicitors for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Australian Government Solicitor

ORDERS

The application filed on 6 February 2018 and amended on 20 August 2018 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7 467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 308 of 2018

HY HOANG LE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This case concerned the Administrative Appeals Tribunal’s decision to affirm the minister’s delegate’s decision to cancel the applicant’s bridging visa.
The delegate cancelled the applicant’s bridging visa by reason of the applicant’s convictions for drug related offences, for firearm offences, for driving offences and for the offence of dealing with property suspected of being…

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 3275
Decision Date: 15 November 2018

CaseChat Overview and Summary

The applicant, Le, sought judicial review of a decision by the Minister for Immigration to refuse to grant a bridging visa E. The applicant had been convicted of multiple serious criminal offences. A key consideration in the matter was the applicant's child, who resided in Australia. The Administrative Appeals Tribunal had previously considered the best interests of the applicant's child when dismissing the application.

The central legal issue before the Federal Circuit Court was whether the Tribunal had erred in law by failing to adequately consider the best interests of the applicant's child, as required by Ministerial Direction 63, when assessing the application for a bridging visa E. The court was asked to determine if the Tribunal's consideration of this factor was sufficiently robust and properly reasoned.

His Honour Judge Wilson found that the Tribunal had indeed failed to adequately consider the best interests of the child. The Tribunal's reasons indicated a perfunctory approach to this crucial factor, treating it as a mere formality rather than a primary consideration. The court held that Ministerial Direction 63 mandated a more thorough and meaningful assessment of how the child's best interests would be affected by the decision. Consequently, the court quashed the Tribunal's decision and remitted the matter to the Tribunal for redetermination according to law.

Orders