Lee v Minister for Immigration - [2005] FMCA 237

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEE v MINISTER FOR IMMIGRATION

[2005] FMCA 237

MIGRATION – Minister’s cancellation of business visa – consideration of hardship to family and best interests of children – obscure decision‑record – jurisdictional error not found.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.116(1), 116(1)(b), 118A, 119, 119(1)(b), 124, 127, 140, 140(1), 368, 474(1), 477(1A), 483A, 501, 501G(1)(e), Part 2 Division 3 Subdivision E, Part 8
Migration Regulations 1994 (Cth), reg.2.05(1), Sch.2 item 457.611(1), Sch.8 item 8107(a)(i)
Migration Series Instruction, MSI‑368: Visa Cancellation Under Sections 109, 116, 128 and 140(1), para.17.2, 17.2.1

Applicant:

BYUNG HYUN LEE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG2518 of 2004

Judgment of:

Smith FM

Hearing date:

4 March 2005

Delivered at:

Sydney

Delivered on:

16 March 2005

REPRESENTATION

Counsel for the Applicant:

Mr N Dobbie

Solicitors for the Applicant:

Parish Patience Immigration

Counsel for the Respondent:

Mr G Kennett

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay the Respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2518 of 2004

BYUNG HYUN LEE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application under s.483A of the Migration Act 1958 (Cth), (“the Migration Act”) which seeks writs which would quash and prohibit the respondent from giving effect to a decision made by her delegate on 25 July 2003. The decision cancelled under s.116(1) of the Migration Act a Business (Long Stay) Class UC subclass 457 visa, which was granted to the applicant on 19 November 2001 and would have allowed him to reside in Australia until 19 November 2005. The applicant had enjoyed substantial periods of residence since December 1999 under previous visas.
The issue of the applicant’s visa also allowed secondary visas to be issued to his dependent wife and daughter, and perhaps also to a son born during its currency – although there is no evidence before me that one was ever issued to him. The…

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: [2005] FMCA 237
Decision Date: 16 March 2005

CaseChat Overview and Summary

In the case of Lee v Minister for Immigration, Byung Hyun Lee appealed against the decision to cancel his visa, arguing that the delegate failed to properly consider the welfare of his children when making her discretionary decision. The matter was heard by the Federal Court of Australia, which was required to determine whether the delegate had made a jurisdictional error by overlooking the children's best interests. The key legal issue before the court was whether the delegate's decision-making process was flawed due to an inadequate assessment of the family welfare concerns raised by the applicant.

The court considered the delegate's written decision and determined that while the delegate had referenced the applicant's concerns, she had not fully incorporated the family welfare concerns into her assessment. The court found that the delegate's reasoning was inconsistent, as the first paragraph of her assessment seemed to limit the matters considered to those identified in Part C, while the second paragraph was more general and appeared to be copied from a template. The court was unable to conclude whether the delegate intended to confirm that she had taken into account matters not explicitly identified in her reasons. However, the court found that the inconsistency and lack of clarity did not necessarily mean the delegate had overlooked the children's interests.

Ultimately, the court dismissed the application and ordered that the applicant pay the respondent's costs in the sum of $5,000. The court held that while the delegate's decision-making process could have been clearer, it did not amount to a jurisdictional error that would warrant the setting aside of the decision. The court found that the delegate had considered the relevant matters, albeit in a less than ideal manner, and thus the decision to cancel the applicant's visa stood.

Orders

Orders of the court

Application dismissed.

Applicant to pay the Respondent’s costs in the sum of $5,000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The delegate then records her discretionary decision and ultimate decision as follows:PART D: DECISION WHETHER TO CANCELDid the visa holder provide reasons why the visa should not be cancelled?Yes.Reasons:Please see reasons under Part CAssessment:The Department served Byung Hyun Lee a Notice of Intention to Cancel on 04/02/03 to which he replied on 19/02/03. The reasons for not cancelling the visa were not considered sufficient to outweigh the existence of the grounds for cancellation.In coming to the following assessment I have taken into account the visa holder’s response to the Notice of Intention to Cancel and the guidelines set out in MSI 368 (Visa Cancellation under Sections 109,116, 128 & 140).PART E: DECISIONIn view of the findings and assessment above, I have decided to cancel Byung Hyun Lee’s visa. I consider that the reference under “Reasons” to “Please see reasons under Part C”, is a cross‑reference to the passage in Part C which I have extracted above. It also appears, prima facie, to be the delegate’s identification of relevant “reasons why the visa should not be cancelled” which had been provided by the visa holder in his response. If so, I accept the contention of the applicant’s counsel that she had not, in the passages extracted under “Part C”, included the applicant’s family welfare concerns raised in his response which I highlighted above. Rather, she had extracted only the concerns personal to the applicant himself. The significant issue is whether I can conclude from this that she overlooked the further family concerns and the related need to treat the children’s interests as a primary consideration, when she made her discretionary decision. Under her heading “Assessment” her reasoning is described in two paragraphs. If the first paragraph is read in isolation, I might conclude that her reference to “the reasons” which “were not considered sufficient” limits the matters she weighed to those which she had isolated and identified under Part C. This would suggest that she forgot to assess the children’s best interests. If so, jurisdictional error would have been established. However, the second paragraph of the assessment is worded in more general terms. The opening words refer to “the following assessment”. This is problematic, since no “assessment” did follow. This inconsistency, and the generality of the language of the paragraph, causes me to think that the delegate has “cut and pasted” this paragraph from a template or other decision record. However, this derivation does not allow it to be ignored (c.f. Minister for Immigration v Wu (supra) at 266). To give meaning to this paragraph, I accept counsel for the Minister’s submission that “the following assessment” should be understood to mean “the above assessment”, being the delegate’s conclusion that the reasons for cancelling outweighed the reasons for not cancelling. I am still left in doubt whether this paragraph was intended to amplify the limited reasoning of the delegate which is implicit in the first paragraph as described above. In particular, whether the delegate should be understood to be confirming that she has taken into account matters which she did not identify in her “reasons under Part C” but which were found in the applicant’s response and in MSI‑368.

Ratio Decidendi

Legal Principle Established

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