Lu v Minister for Immigration - [2019] FCCA 1330

FEDERAL CIRCUIT COURT OF AUSTRALIA

LU v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1330

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant Partner visa – whether the Tribunal considered whether the applicant and sponsor were in a genuine and continuing relationship not by reference to the relationship as it existed at the time the Tribunal made its decision but by reference to the circumstances in which the applicant and the sponsor agreed to marry – whether the s.359A of the Migration Act 1958 (Cth) (Act) applied to previous representation made by the applicant – whether s.359A of the Act applied to information covered by a certificate purportedly issued under s.375A of the Act – whether applicant not given notice of the substance of the information covered by the certificate purported issued under s.375A of the Act – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5F, 359A, 359AA, 360, 375A, 424A
Migration Regulations 1994 (Cth), regs.1.15A
Migration Regulations 1994 (Cth), Schedule 2, cl.801.221

Cases cited:

Malhi v Minister for Immigration & Anor [2017] FCCA 119
Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3
Minister for Immigration and Citizenship v SZLFX [2009] HCA 31
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

Applicant:

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 549 of 2017

Judgment of:

Judge Manousaridis

Hearing date:

17 May 2018

Date of Last Submission:

17 May 2018

Delivered at:

Sydney

Delivered on:

22 May 2019

REPRESENTATION

Counsel for the Applicant:

Ms U Okereke-Fisher

Solicitors for the Applicant:

Vietaust Lawyers

Counsel for the Respondents:

Ms N Case

Solicitors for the Respondents:

HWL Ebsworth Lawyers

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 549 of 2017

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, a citizen of Vietnam, applies for judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Partner (Residence) (Class BS) visa (Partner visa).

Partner visa requirements

To have been entitled to a Partner visa the applicant had to satisfy, among other things, the criterion specified in cl.801.221(2)(c) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) as those Regulations stood at the time the applicant applied for the Partner visa.[1] That paragraph requires that at the time of decision the applicant “is the spouse or de facto partner of the sponsoring partner”. Subsection 5F(1) of the Migration Act 1958 (Cth) (Act), as it stood at the time the applicant applied for the…

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 1330
Decision Date: 22 May 2019

CaseChat Overview and Summary

The applicant, Lu, sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed the Minister for Immigration's decision to refuse her a Partner visa. The core of the dispute concerned whether the Tribunal had properly assessed the genuineness and continuing nature of Lu's relationship with her sponsor.

The court was required to determine several key legal issues. Firstly, it considered whether the Tribunal had erred by assessing the applicant and sponsor's relationship by reference to the circumstances of their agreement to marry, rather than the relationship as it existed at the time the Tribunal made its decision. Secondly, the court examined whether section 359A of the *Migration Act 1958* (Cth) applied to a previous representation made by the applicant. Thirdly, the court considered the application of section 359A to information covered by a certificate purportedly issued under section 375A of the Act. Finally, the court addressed whether the applicant had been given adequate notice of the substance of the information contained within the section 375A certificate.

His Honour Judge Manousaridis found that the Tribunal had not committed jurisdictional error. The Tribunal's assessment of the relationship was not confined to the agreement to marry but encompassed the relationship at the time of the decision. Furthermore, the court determined that section 359A did not apply to the applicant's previous representation in the manner argued by the applicant, nor did it apply to the information covered by the section 375A certificate. The court also found that the applicant had been given sufficient notice of the information covered by the certificate. Consequently, the application for judicial review was dismissed.

Orders