Lie v Minister for Immigration - [2018] FCCA 843

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIE v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 843

Catchwords:
MIGRATION – Resident Return visa – cancellation for prior incorrect statements – review of Administrative Appeals Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to treat the best interests of the applicant’s grandchildren as a primary consideration, contrary to Australia’s obligations under the United Nations Convention on the Rights of the Child.

Legislation:

Migration Act 1958, ss.99, 101, 107, 109, 474

Migration Regulations 1994, reg.2.41
United Nations Convention on the Rights of the Child

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Citizenship v Khadgi (2010) 190 FCR 248
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 [2005] AATA 142
Minister for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273
Poroa v Minister for Immigration and Border Protection [2017] FCA 826
Otene and Minister for Immigration & Multicultural & Indigenous Affairs [2005] AATA 142
Wan v Minister for Immigration & Multicultural Affairs (2001) 107 FCR 133

Applicant:

PIT MOY LIE

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1685 of 2017

Judgment of:

Judge Cameron

Hearing date:

12 February 2018

Date of Last Submission:

12 February 2018

Delivered at:

Sydney

Delivered on:

13 April 2018

REPRESENTATION

Counsel for the Applicant:

Mr D. Hughes

Solicitors for the Applicant:

D’Ambra Murphy Lawyers

Counsel for the First Respondent:

Ms K. Pham

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1685 of 2017

PIT MOY LIE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Indonesia who, on 3 January 2008, was granted a Contributory Parent visa (subclass 143) (“Contributory Parent visa”). On 6 March 2013 she was granted a BB-155 Resident Return visa (“Resident Return visa”) which is the subject of this proceeding. On 7 September 2016 a delegate of the first respondent (“Minister”) cancelled the applicant’s visa under s.109 of the Migration Act 1958 (“Act”) on the basis that the applicant had provided incorrect information in her application for the Contributory Parent visa. The applicant applied to the second respondent (“Tribunal”) for a review of that departmental decision. She was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In this judicial review proceeding the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.

Relevant Legislation

Subdivision C of div.3 of pt.2 of the Act sets out the circumstances in which visas based on incorrect…

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 843
Decision Date: 13 April 2018

CaseChat Overview and Summary

The applicant, Mr. Lie, sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed the cancellation of his Resident Return visa. The cancellation was based on findings that Mr. Lie had made prior incorrect statements. The core of the dispute concerned whether the Tribunal's decision was affected by jurisdictional error due to an alleged failure to adequately consider the best interests of Mr. Lie's grandchildren, in contravention of Australia's obligations under the United Nations Convention on the Rights of the Child. The matter was heard by Judge Cameron.

The central legal issue before the Court was whether the Tribunal erred in law by failing to treat the best interests of the applicant's grandchildren as a primary consideration when reviewing the visa cancellation decision. This question required the Court to consider the scope of the Tribunal's obligations under domestic administrative law and its international law commitments, specifically as they relate to the Convention on the Rights of the Child.

Judge Cameron reasoned that while the Convention on the Rights of the Child imposes obligations on Australia, these obligations do not automatically translate into a requirement for administrative decision-makers to treat the best interests of children as a "primary consideration" in every case where children are affected. The Court found that the Tribunal had indeed considered the impact on the grandchildren, but it was not required to elevate this consideration to a "primary" status in the manner contended by the applicant. The Court applied principles of administrative law concerning jurisdictional error, distinguishing between a failure to consider a relevant matter and a failure to give a particular weight to a relevant matter. The Court concluded that the Tribunal's decision was not affected by jurisdictional error.

Orders