Lo v Minister for Immigration - [2019] FCCA 2642

FEDERAL CIRCUIT COURT OF AUSTRALIA

LO & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2642

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Other Family (Residence) (Class BU) visa – whether the Tribunal misconstrued and misapplied the provisions under cl 836.213 of Schedule 2 of the Migration Regulations 1994 (Cth) – whether the Tribunal denied the first applicant a meaningful and fair opportunity to present arguments and give evidence – whether the Tribunal failed to comply with the requirements under s 360 of the Migration Act 1958 (Cth) – whether the Tribunal committed jurisdictional error due to an invalid notification purportedly made under s 376 of the Migration Act 1958 (Cth) and/or denial of procedural fairness – no jurisdictional error made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss, 360, 376

Migration Regulations 1994 (Cth), r 1.20, cl 836.321 of Schedule 2, cl 836.213

of Schedule 2

Cases cited:

Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417

Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd

(1994) 49 FCR 576

Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599

Parvin v Minister for Immigration and Border Protection [2019] FCAFC 86

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs

(2006) 228 CLR 152

First Applicant:

HSIANG-LING LO

Second Applicant:

YI-SHAN HOU

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2044 of 2018

Judgment of:

Judge Humphreys

Hearing date:

18 September 2019

Date of Last Submission:

18 September 2019

Delivered at:

Parramatta

Delivered on:

25 October 2019

REPRESENTATION

Counsel for the Applicants:

Mr Chia

Solicitors for the Applicants:

MurdockCheng Legal Practice

Counsel for the Respondents:

Mr Knowles

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The first applicant pay the first respondent’s costs fixed in the amount of $5500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 2044 of 2018

HSIANG-LING LO

First Applicant

YI-SHAN HOU

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The first applicant is a Taiwanese national. In January 2010, the applicant arrived in Australia with her daughter. The first applicant was on a Student Guardian visa and her daughter was on a Student Visa.
On 21 November 2012, the first applicant submitted an application for an Other Family (Residence) (Class BU) visa in relation to caring for her father Yung-Tsao Lo (sponsor). On 29 August 2013, a Power of Attorney signed by the first applicant’s father was submitted to the then Department of Immigration and Border Protection (“the Department”). On 8 June 2017, a delegate of the Minister advised that the Power of Attorney, signed by Mr Lo, did not meet the Minister’s requirement and the visa was denied. The first…

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: [2019] FCCA 2642
Decision Date: 25 October 2019

CaseChat Overview and Summary

The applicants, Mr and Mrs Lo, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) concerning their application for an Other Family (Residence) (Class BU) visa. The central dispute revolved around whether the AAT had correctly interpreted and applied the provisions of clause 836.213 of Schedule 2 to the *Migration Regulations 1994* (Cth), and whether the first applicant had been afforded a fair opportunity to present their case. The matter came before Judge Humphreys in the Federal Circuit and Family Court of Australia.

The court was required to determine several key legal issues. These included whether the AAT had misconstrued and misapplied clause 836.213 of the Migration Regulations, whether the AAT had denied the first applicant a meaningful and fair opportunity to present arguments and evidence, and whether the AAT had failed to comply with the requirements of section 360 of the *Migration Act 1958* (Cth). Furthermore, the court considered whether the AAT had committed jurisdictional error due to an invalid notification purportedly made under section 376 of the Migration Act, or alternatively, due to a denial of procedural fairness.

Judge Humphreys found that no jurisdictional error had been made out. The reasoning focused on the AAT's application of the relevant regulatory provisions and its conduct in relation to procedural fairness. The court concluded that the AAT had not erred in its interpretation or application of clause 836.213, nor had it denied the applicants a fair opportunity to present their case. The notification procedures under section 376 were also found to be valid, and consequently, no jurisdictional error arose from that aspect.

The application for judicial review was therefore dismissed.

Orders