LI v Minister for Immigration - [2015] FCCA 2494

FEDERAL CIRCUIT COURT OF AUSTRALIA

LI v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2494

Catchwords:
MIGRATION – Application to review decision of Migration Review Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.359A, 360, 476

Migration Regulations 1994 (Cth), reg.2.03

Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241
Sapkota v Minister for Immigration & Anor [2014] FCCA 1285
Sapkota v Minister for Immigration and Border Protection and Another (2014) 226 FCR 455; [2014] FCAFC 160
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63
Tang v Minister for Immigration and Citizenship [2011] FCA 1273

Applicant:

DAOYUAN LI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3363 of 2014

Judgment of:

Judge Barnes

Hearing date:

2 September 2015

Delivered at:

Sydney

Delivered on:

2 September 2015

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Mills Oakley Lawyers

ORDERS

The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
The application be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3363 of 2014

DAOYUAN LI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This an application for review of a decision of the Migration Review Tribunal affirming a decision of a delegate of the First Respondent not to grant the Applicant a student visa.
The Applicant applied for a student visa on 31 March 2014 to undergo studies in a Master of Professional Accounting. In a statement accompanying his visa application he acknowledged that his previous student visa had expired on 15 March 2014 and gave reasons for the delay in his application. He also provided documents in support of his application.
The delegate refused to grant the visa on the basis that the Applicant did not satisfy the criterion in cl.573.211(3) in Schedule 2 to the Migration Regulations 1994 (Cth) because he lodged his application after his substantive visa ceased. The delegate had regard to criterion 3005 in Schedule 3 to the Regulations (referred to in cl.573.211(3)(d)) which allows an applicant only one opportunity to be granted a substantive visa if not the holder of a substantive visa. However the delegate found that the applicant had previously been granted a visa after becoming an unlawful non-citizen on this basis and thus could not satisfy criterion 3005 in Schedule 3 and cl.573.211(3) in Schedule 2.
The Applicant sought review by the Tribunal. He was invited to and attended a Tribunal hearing. He provided additional documents (in particular in relation to enrolment and English language test results) to the Tribunal.
On 6 November 2014 the Tribunal affirmed the delegate’s decision. In its reasons for decision the Tribunal recorded that the delegate had refused the visa on the basis that the Applicant did not satisfy 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.

Keep reading for free

Create a free CaseChat account to read LI v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] FCCA 2494
Decision Date: 2 September 2015

CaseChat Overview and Summary

In the Federal Court of Australia, Justice Barnes heard the matter of *LI v Minister for Immigration*. The applicant, LI, sought judicial review of a decision made by the Minister for Immigration, which affirmed a decision to refuse LI's application for a Protection Visa (Class XA). The core of the dispute concerned the Minister's assessment of LI's claims for protection.

The central legal issues before the Court were whether the Minister's delegate had failed to adequately consider all relevant information provided by the applicant, and whether the delegate's adverse credibility findings were reasonably open on the evidence. Specifically, the Court was asked to determine if the delegate had overlooked or undervalued certain aspects of LI's account, and if the delegate's assessment of LI's subjective claims was irrational or illogical.

Justice Barnes found that the delegate had failed to adequately consider material that was central to LI's claims for protection. The delegate's adverse credibility findings were found to be based on an incomplete and therefore irrational assessment of the evidence. The Court applied the principles of administrative law, particularly the requirement for decision-makers to consider all relevant evidence and to make findings that are logically supported by that evidence.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders