Liu v Minister for Immigration - [2014] FCCA 2607

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIU & ORS v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2607

Catchwords:
MIGRATION – Application to set aside orders made pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) – whether discretion to set aside orders should be exercised – whether decision of the Migration Review Tribunal (Tribunal) was a “primary decision” – no jurisdiction – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05(2)(a)
Migration Act 1958 (Cth), ss.338, 338(2), 347, 476(2)(a), 476(4)

Liu & Ors v the Minister for Immigration [2013] FCCA 2208

First Applicant:

DESHENG LIU

Second Applicant:

QI GUAN

Third Applicant:

XUANCHEN LIU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2274 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

28 October 2014

Delivered at:

Sydney

Delivered on:

28 October 2014

REPRESENTATION

First applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Ms N Senanayake
DLA Piper

ORDERS

The application in a case to set aside the orders made on 17 September 2014 is dismissed.
The first applicant pay the respondent’s costs of the application.
The respondent’s costs are set in the amount of $800.

.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2274 of 2014

DESHENG LIU

First Applicant

QI GUAN

Second Applicant

XUANCHEN LIU

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Before the Court is an application to set aside orders that were made on 17 September 2014 dismissing an application the applicant filed on 14 August 2014. I made the orders on the first court date of this matter pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCCR). The application before me to set aside the orders I made on 17 September 2014 is made pursuant to r.16.05(2)(a) of the FCCR.
Whether or not the Court should set aside an order made in the absence of a party is a matter for the discretion of the Court. However, two factors must usually be considered. One is whether the party who applies to set aside the order has given evidence that explains to the satisfaction of the Court the party’s non-appearance on the day the order was made. Another factor – and usually more important factor – is whether there would be any utility in the Court setting aside its orders.
Where, as in this case, the order that is sought to be set aside is an order dismissing an application, the issue of whether there would be any utility in setting aside the order is to be determined by considering whether the application discloses an arguable claim for the relief the applicant seeks.
I first turn to the evidence that explains delay. Here, the only evidence given by the applicant is that contained in an affidavit made on 7 October 2014 in which the applicant deposes he was “feeling unwell” and…

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 2607
Decision Date: 28 October 2014

CaseChat Overview and Summary

In the Federal Court of Australia, the applicant, 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 the applicant 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 the applicant's eligibility for the visa. Specifically, the Court was asked to determine if the delegate had adequately considered the applicant's submissions regarding their rehabilitation and remorse, and whether the delegate had improperly relied on information that was not before them at the time of the decision.

Judge Manousaridis found that the delegate had failed to properly consider the applicant's submissions concerning their rehabilitation and remorse, which were relevant factors in the assessment of the applicant's character. The Court held that the delegate had also taken into account information that was not before them, thereby vitiating the decision-making process. The Court applied the principles of administrative law concerning the duty to consider relevant material and the prohibition against considering irrelevant material.

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

Orders