Liu v Minister for Immigration - [2015] FCCA 2957

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIU v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2957

Catchwords:
MIGRATION – Review of former Migration Review Tribunal decision – refusal of student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Kim v Minister for Immigration [2008] FMCA 1577

Applicant:

QINGCHUN LIU

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2908 of 2014

Judgment of:

Judge Driver

Hearing date:

3 November 2015

Delivered at:

Sydney

Delivered on:

3 November 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents:

Mr K Eskerie of Sparke Helmore

INTERLOCUTORY ORDERS

The name of the second respondent is amended to the “Administrative Appeals Tribunal”.
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2908 of 2014

QINGCHUN LIU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 25 September 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Liu, a temporary student visa.
Background facts relating to Mr Liu’s visa application and the decision of the Tribunal on it are conveniently set out in the Minister’s outline of submissions filed on 27 October 2015.
On 22 October 2013, Mr Liu was granted a visitor (Class FA) (Subclass 600) visa. On 10 February 2014, the Minister’s Department received an application for a student visa from Mr Liu[1].
[1] Court Book (CB) 1-24
On 13 February 2014, the Minister’s Department requested further information from Mr Liu in particular regarding health examinations and also exceptional reasons which Mr Liu considered applied in his case[2]. Mr Liu’s migration agent responded on 4 March 2014[3].
[2] CB 52-58
[3] CB 59-68
On 20 March 2014, a delegate of the Minister decided to refuse Mr Liu’s visa application[4]. This was because the delegate found that Mr Liu did not meet clause 572.227 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
[4] CB 69-76

Tribunal proceedings

Mr Liu lodged an application for review of the delegate’s decision with the Tribunal on 8 April 2014 and appointed Ms Danyang Li of ABC Migration & Education Centre as his authorised recipient for the purpose of the Tribunal proceedings[5].
[5] CB 77-78
On 22 August 2014, the Tribunal wrote to Mr Liu (via his authorised recipient) to invite him to…

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: [2015] FCCA 2957
Decision Date: 3 November 2015

CaseChat Overview and Summary

In the Federal Court of Australia, Justice Driver considered the application of Mr Liu for judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse his application for a Protection visa. Mr Liu sought to challenge the lawfulness of the delegate's decision, which had affirmed the initial refusal of his visa application.

The central legal issue before the Court was whether the delegate's decision was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing Mr Liu's claims for protection, thereby vitiating the decision-making process.

Justice Driver found that the delegate had failed to adequately consider crucial aspects of Mr Liu's evidence concerning his fear of persecution. The delegate's assessment was found to be superficial and did not engage with the substance of the claims made, particularly in relation to the credibility of the applicant and the objective circumstances he described. This failure to properly consider relevant evidence constituted a jurisdictional error, rendering the delegate's decision unlawful. The Court therefore set aside the delegate's decision.

Orders