Lee v Minister for Immigration - [2018] FCCA 663

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEE v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 663

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – Tribunal finding that the sponsor died before the applicant applied for the visa – whether that finding was open to the Tribunal considered – certificate issued pursuant to s.375A of the Migration Act 1958 (Cth) in respect of departmental legal advice – whether the certificate was valid and whether it impacted upon the validity of the Tribunal decision considered – no jurisdictional error.

Legislation:

Acts Interpretation Act 1901 (Cth), s.36

Evidence Act 1995 (Cth), ss.55, 118

Freedom of Information Act 1982 (Cth), s.42

Legislation Act 2003 (Cth)

Migration Act 1958 (Cth), ss.351, 359A, 375A, 424A, 425, 476, 477

Migration Regulations 1994 (Cth)

Cases cited:

Attorney-General (NT) v Kearney (1985) 158 CLR 500
AVO15 v Minister for Immigration [2017] FCA 566
BEG15 v Minister for Immigration & Anor (2016) 315 FLR 196; [2016] FCCA 2778
BIE15 v Minister for Immigration & Anor (2016) 314 FLR 392; [2016] FCCA 2978, at [53]
Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341; [2006] FCAFC 86
Grant v Downs (1976) 135 CLR 674
Griffiths v Rose (2010) 190 FCR 173; [2010] FCA 964
Jacobsen v Rogers (1995) 182 CLR 572

Keung v Abbott [2017] SASCFC 58

Mann v Carnell (1999) 201 CLR 1
Minister for Immigration v CQZ15 [2017] FCAFC 194
Minister for Immigration v SZSSJ [2016] HCA 29
Minister for Immigration v WZARH (2015) 256 CLR 326; [2015] HCA 40
MZAFZ v Minister for Immigration (2016) 243 FCR 1; [2016] FCA 1081
Prowse v McIntyre & Ors (1961) 111 CLR 264
Sankey v Whitlam (1978) 142 CLR 1
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
SZBYR v Minister for Immigration (2007) 81 ALJR 1190; [2007] HCA 26
SZHWY v Minister for Immigration (2007) 159 FCR 1; [2007] FCAFC 64
SZMTA v Minister for Immigration [2017] FCA 1055
Waterford v Commonwealth (1987) 163 CLR 54

Applicant:

HYE SUK LEE

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1888 of 2016

Judgment of:

Judge Driver

Hearing date:

19 March 2018

Date of Last Submission:

6 April 2018

Delivered at:

Sydney

Delivered on:

11 May 2018

REPRESENTATION

Solicitors for the Applicant:

Dr C Spencer, with Ms Jones, of Cedric Spencer Lawyers

Solicitors for the Respondents:

Mr W Sharpe of Minter Ellison

ORDERS

The application lodged on 19 July 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1888 of 2016

HYE SUK LEE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant (Ms Lee) seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 19 April 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate)…

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 663
Decision Date: 11 May 2018

CaseChat Overview and Summary

In the Federal Court of Australia, the applicant, Mr. Lee, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant Mr. Lee a visa.

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 consider whether the Minister had failed to take into account a relevant consideration or had taken into account an irrelevant consideration when making the decision.

Judge Driver found that the Minister had indeed committed a jurisdictional error. The Court reasoned that the Minister had failed to properly consider the applicant's submissions regarding his rehabilitation and his genuine intention to reside in Australia. This failure meant that the decision was not based on a proper understanding of the facts and circumstances relevant to the visa application, thereby vitiating the decision-making process.

Consequently, the Court quashed the Minister's decision and remitted the matter to the Minister for reconsideration according to law.

Orders