LIN v Minister for Immigration - [2014] FCCA 2544

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIN v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2544

Catchwords:
MIGRATION – Review by Migration Review Tribunal (Tribunal) of decision refusing applicant a Student (Temporary) (Class TU) visa – whether in assessing whether the applicant substantially complied with the conditions attached to his last substantive visa and subsequent bridging visas the Tribunal was required to assess whether the applicant had complied substantially with all the conditions that applied to such visas considered together rather than only considering whether the applicant had substantially complied with any one condition.

Legislation:

Migrations Regulations 1994 (Cth), Schedule 2, cl.572.235
Schedule 3, cl. 3004(e), 3004(e)(ii)
Schedule 8, conditions 8101, 8202, 8516

Montero v Minister for Immigration and Border Protection [2014] FCA 1096
Montero v Minister for Immigration & Anor [2014] FCCA 946

Applicant:

TAOQUAN LIN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2581 of 2013

Judgment of:

Judge Manousaridis

Hearing date:

24 April 2014

Date of Last Submission:

8 May 2014

Delivered at:

Sydney

Delivered on:

7 November 2014

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Ms S. Burnett
Clayton Utz Lawyers

ORDERS

The matter stand over until such time as it is relisted pursuant to the liberty to apply referred to in order 2.
The parties have liberty to apply on seven days’ notice to relist the matter before Judge Manousaridis after the Full Federal Court delivers its reasons on, or otherwise disposes of, the appeal against the orders made by this Court in Montero v Minister for Immigration & Anor [2014] FCCA 946.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2581 of 2013

TAOQUAN LIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant seeks to set aside a decision of the second respondent (Tribunal) that affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Class TU) visa (Student visa).
The Tribunal affirmed the delegate’s decision because it was not satisfied the applicant had substantially complied with conditions that applied to the last substantive visa and the bridging visas the applicant held.

Background

On 17 August 2011 the applicant applied for a Student visa. At the time he applied for this visa, the applicant held no other visa, but he had held a Student visa that expired on 20 July 2011 (last substantive visa). On 7 October 2011 the applicant was granted a bridging visa that entitled the applicant to remain in Australia until his application for a Student visa was determined.
To have been entitled to a Student visa, the applicant had to satisfy the Minister the applicant “complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa”.[1] Two conditions…

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: [2014] FCCA 2544
Decision Date: 7 November 2014

CaseChat Overview and Summary

The applicant, LIN, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, as required by the *Migration Act 1958* (Cth). The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the Refugee Review Tribunal (RRT) had erred in law in its assessment of the applicant's claims. Specifically, the court was asked to consider whether the RRT had failed to adequately consider all relevant evidence, including the applicant's personal circumstances and the country information pertaining to their alleged country of origin. The court also had to determine if the RRT's findings were supported by the evidence before it and if its decision was affected by an error of fact or law.

Judge Manousaridis found that the RRT had failed to properly assess the applicant's claims regarding membership of a particular social group. The court reasoned that the RRT had not adequately engaged with the evidence presented by the applicant concerning their specific circumstances and the potential risks they faced. The RRT's decision was therefore found to be affected by an error of law, as it did not properly apply the relevant legal principles to the facts as found. The court set aside the decision of the RRT and remitted the matter to the RRT for redetermination according to law.

Orders