Le v Minister for Immigration - [2018] FCCA 3215

FEDERAL CIRCUIT COURT OF AUSTRALIA

LE v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3215

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Partner (Migrant) (Class BC) subclass visa (Partner visa) – whether in the course of reviewing a decision not to grant the applicant a Partner visa the Tribunal failed to comply with s.359A of the Migration Act 1958 (Cth) – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5F, 359A, 476

Cases cited:

MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319
SAAP v Minister for Immigration [2005] HCA 24
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

Applicant:

VAN HUAN LE

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2384 of 2016

Judgment of:

Judge Manousaridis

Hearing date:

9 November 2017

Date of Last Submission:

9 November 2017

Delivered at:

Sydney

Delivered on:

9 November 2018

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

My T Nguyen Solicitors

Solicitors for the Respondent:

Ms S Given of HWL Ebsworth Lawyers

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2384 of 2016

VAN HUAN LE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The issue in this application for a remedy under s.476 of the Migration Act 1958 (Cth) (Act) is whether the second respondent (Tribunal), in the course of reviewing a decision of a delegate of the first respondent (Minister) not to grant the applicant a Partner (Migrant) (Class BC) visa (Partner visa), failed to comply with s.359A of the Act.
To be in a position to describe and consider the ground on which the applicant relies, it will be necessary to say something about some of the criteria the applicant was required to meet before he could be granted a Partner visa, the background to the application to the Tribunal, and the Tribunal’s reasons for affirming the delegate’s decision.

Partner visa requirements

To have been entitled to a Partner visa the applicant had to satisfy, among other things, the criterion specified in cl.100.221(2)(b) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) as those Regulations stood at the time the applicant applied for the Partner visa.[1] That paragraph requires that at the time of decision the applicant “is the spouse or de facto partner of the sponsoring partner”. Subsection 5F(1) of the Migration Act 1958 (Cth) (Act), as it stood at the time the applicant applied for the Partner visa, provided that a person is the “spouse” of another person if, under s.5F(2) of the Act, the two persons are in a “married relationship”. Under s.5F(2) of the Act, persons are in a “married relationship” if:
a)they are married to…

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 3215
Decision Date: 9 November 2018

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed a decision not to grant the applicant a Partner (Migrant) (Class BC) subclass visa. The applicant contended that the Tribunal failed to comply with section 359A of the *Migration Act 1958* (Cth) during its review process.

The central legal issue before the court was whether certain statements within a statutory declaration constituted "information" that the Tribunal considered would be the reason, or part of the reason, for affirming the decision to refuse the visa, as contemplated by section 359A. This required the court to determine the proper interpretation of "information" in the context of the Tribunal's obligations under the Act.

The court reasoned that the statutory criterion under section 359A does not depend on the Tribunal's internal reasoning process or its published reasons. Instead, the "reason for affirming the decision" is determined by the substantive criteria for making that decision, which in this case related to the applicant's eligibility for a protection visa under section 36(1) of the Act. The court found that the statements in the statutory declaration did not, in themselves, reject, deny, or undermine the applicant's claims to protection. If believed, such statements would have been a step towards rejecting, rather than affirming, the decision under review. Therefore, the court concluded that the statements did not constitute the relevant "information" for the purposes of section 359A.

The court found no jurisdictional error and dismissed the application for judicial review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The plurality’s reasons for concluding the statements contained in the statutory declaration did not constitute “information” which the RRT considered would be the reason or part of the reason for affirming the decision under review are to be found in the following passage (emphasis added):[34]Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”. The statutory criterion does not, for example, turn on “the reasoning process of the Tribunal”, or “the Tribunal's published reasons”. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.[34] [2007] HCA 26 at [17] In my opinion, the sponsor’s evidence identified in the particulars to ground 1 which the Tribunal found to be inconsistent with evidence given by the applicant was not “information” because that evidence “did not contain in their terms a rejection, denial or undermining of the” applicant’s claims for a Partner visa. As with the inconsistent statements contained in the statutory declarations considered in SZBYR, if the sponsor’s evidence were believed, that “would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review”. In other words, the sponsor’s evidence did not contain “in [its] terms a rejection, denial or undermining of the” applicant’s claims. The ground on which the applicant relies, therefore fails.

Ratio Decidendi

Legal Principle Established

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