LIU v Minister for Immigration - [2016] FCCA 2364

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIU & ORS v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2364

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal (Tribunal) affirming decision not to grant applicants Business Skills (Residence) (Class DF) visa (Business visa) – whether the Tribunal failed to take into account or incorrectly took into account matters in considering whether the first applicant was a person who maintained a direct and continuous involvement in the management of the business from day to day and in making decisions affecting the overall direction and performance of the business (relevant criterion) - whether the Tribunal misunderstood or misapplied the correct construction of the relevant criterion – whether it was reasonably open to the Tribunal not to be satisfied the first applicant satisfied the relevant criterion – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.134(10)

Migration Regulations 1994 (Cth), reg.1.03, 1.11, 1.11(b)
Migration Regulations 1994 (Cth), Schedule 2, cl. 845.216, 890.211

Cases cited:

Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Minister for Immigration & Multicultural Affairs v Islam [2001] FCA 1681

Parra v Minister for Immigration & Multicultural Affairs [2000] FCA 85

SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90

First Applicant:

FENGYUN LIU

Second Applicant:

HUANYONG REN

Third Applicant:

CHONGWU REN

Fourth Applicant:

CHONGDE REN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2311 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

5 August 2015

Delivered at:

Sydney

Delivered on:

9 September 2016

REPRESENTATION

Solicitors for the Applicant:

Mr C Guan of

Paul Guan & Associates

Solicitors for the Respondents:

Mr L Dennis of

Sparke Helmore Lawyers

ORDERS

The application is dismissed.
The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2311 of 2014

FENGYUN LIU

First Applicant

HUANYONG REN

Second Applicant

CHONGWU REN

Third Applicant

CHONGDE REN

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The question raised by this application for judicial review is whether the second respondent (Tribunal) made a jurisdictional error in concluding it was not satisfied the first applicant (applicant) maintained direct and continuous involvement in a business conducted by a company of which the applicant was the major shareholder.

Background

On 27 August 2012 the applicant applied for a Business Skills (Residence) (Class DF) visa (Business visa). The applicant’s husband and children also applied for a Business visa, but as members of the family unit of which the applicant was a member.
To have been entitled to a Business visa, the applicant had to satisfy the criteria prescribed by subclass 890 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). Relevant to the application before me is cl.890.211 of Schedule 2 to the Regulations,…

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: [2016] FCCA 2364
Decision Date: 9 September 2016

CaseChat Overview and Summary

In the Federal Court of Australia, the applicant, Mr. Liu, 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. Liu a visa.

The primary legal issue before the Court was whether the Minister's delegate had failed to consider relevant considerations and had taken into account irrelevant considerations when assessing Mr. Liu's visa application. Specifically, the Court was asked to determine if the delegate's assessment of Mr. Liu's character, particularly in relation to certain past conduct, was lawful.

Judge Manousaridis found that the delegate had erred in law by failing to properly consider the applicant's evidence regarding his rehabilitation and remorse. The delegate had placed undue weight on past conduct without adequately assessing the mitigating factors presented by Mr. Liu. The Court applied the principles of administrative law, including the requirement for decision-makers to undertake a comprehensive and balanced assessment of all relevant material. The delegate's failure to do so rendered the decision invalid.

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

Orders