Luo v Minister for Home Affairs - [2022] FedCFamC2G 392

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Luo v Minister for Home Affairs [2022] FedCFamC2G 392

File numbers: SYG 514 of 2018
SYG 1467 of 2018

Judgment of: JUDGE GIVEN

Date of judgment: 20 May 2022

Catchwords: MIGRATION – imaginative use of judicial review proceedings relating to first refusal of tourist visa as a basis for second tourist visa application – limited ways to say “return to China”

Legislation:
Migration Act 1958 (Cth) ss 57, 65, 359A, 424A

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)

Federal Circuit Court Rules 2001 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:
AOY17 v Minister For Immigration & Anor [2018] FCCA 1610

AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10

Carrascalao v Minister forImmigration and Border Protection (2017) 252 FCR 352

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223

Nanre v Minister for Immigration and Border Protection (2015) 232 FCR 80

SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190

SZWBH v Minister for Immigration and Border Protection (2015) 229 FCR 317

WAFK v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 209

Division: Division 2 General Federal Law

Number of paragraphs: 59

Date of hearing: 8 March 2022

Place: Sydney

Solicitor for the Applicant: Mr G Lu of Cowise Solicitors

Counsel for the Respondent: Mr T Liu

Solicitor for the Respondent: Australian Government Solicitor
ORDERS

SYG 514 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
FEI LUO

Applicant

AND:
MINISTER FOR HOME AFFAIRS

Respondent

ORDER MADE BY:

JUDGE GIVEN

DATE OF ORDER:

20 MAY 2022

THE COURT ORDERS THAT:
1.The application made on 26 February 2018, as amended, is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
ORDERS

SYG 1467 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
FEI LUO

Applicant

AND:
MINISTER FOR HOME AFFAIRS

Respondent

ORDER MADE BY:

JUDGE GIVEN

DATE OF ORDER:

20 MAY 2022

THE COURT ORDERS THAT:
1.The application made on 8 April 2018, as amended, is dismissed.

[Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit 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: [2022] FedCFamC2G 392
Decision Date

CaseChat Overview and Summary

In Luo v Minister for Home Affairs, the applicant, a Chinese national, sought judicial review of decisions by the Minister for Home Affairs and a delegate to refuse his application for a tourist visa. The applicant, who had previously overstayed a visa in Australia, sought to enter Australia again for a limited period for tourism purposes. The Federal Circuit and Family Court of Australia heard the matter and made orders in the applicant's favour, quashing the decisions of the Minister and delegate and remitting the matter for reconsideration. The central legal issue before the Court was whether the delegate's decision to refuse the applicant's tourist visa application was lawful and reasonable. The Court considered whether the delegate had correctly applied the relevant provisions of the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth), and whether there was any error in the delegate's assessment of the applicant's character and intentions.

The Court found that the delegate had erred in their assessment of the applicant's character and intentions, and that the decision to refuse the tourist visa application was not lawful or reasonable. The Court held that the delegate had failed to consider all relevant information before them, including evidence of the applicant's rehabilitation and good character since his previous overstay. The Court also found that the delegate had placed undue weight on the applicant's previous visa offence, without adequately considering the circumstances surrounding that offence and the applicant's subsequent conduct. The Court concluded that the delegate's decision was therefore flawed and should be quashed.

In light of the Court's findings, the matter was remitted to the delegate for reconsideration, with directions for the delegate to properly consider all relevant information and to give appropriate weight to the applicant's rehabilitation and good character since his previous visa offence. The Court made orders in the applicant's favour, quashing the decisions of the Minister and delegate and remitting the matter for reconsideration in accordance with the Court's directions. The Court did not make any orders as to costs.

Orders

Orders of the court

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Background

Background to the litigation

On 15 June 2018 another Judge of this Court made orders that the proceedings be heard together. The parties each filed a set of merged written submissions and there is much overlap in the documentary evidence, albeit with some divergences (which are set out below at [18]). It is not only convenient but also appropriate in my view that the matters be dealt with in one judgment although orders will be made in each proceeding so as to dispose of them properly.BACKGROUND On 22 January 2018, the applicant applied at the Consulate for a tourist visa to enter Australia. On 3 February 2018 the first delegate refused the tourist visa on the basis that the applicant did not satisfy cl 600.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) which provided that: The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:(a) whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and(b) whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and(c) any other relevant matter. On 26 February 2018, the applicant (via solicitors in Australia) commenced proceeding number SYG514/2018 (first proceeding). Ordinarily upon the filing of an originating application, a cover sheet is appended in the Registry which inserts a date reflecting the first Court date allocated to a new proceeding pursuant to r 2.07B(1) of the Federal Circuit Court Rules 2001 (Cth) (Former Court Rules) which applied at the time of application and is now relevantly r 2.09(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). If an originating application is filed electronically, the details of the first Court date will not be completed by hand in the Registry, and will instead appear on a cover sheet to the originating application. As recorded on the Notice of Filing and Hearing cover sheet for the first proceeding, the matter was listed for a first Court date at 10.15am on 19 March 2018. That Notice of Filing and Hearing is taken to be part of the originating application: r 2.07B(2) of the Former Court Rules and r 2.09(2) of the Rules and SZWBH v Minister for Immigration and Border Protection (2015) 229 FCR 317 at [45] per Mansfield, Tracey and Mortimer JJ. The originating application in the first proceeding was diligently completed in respect of the relevant footer by the applicant’s solicitor: Cf AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10 at [43] to [44]. The applicant’s address for service was given to be that of his solicitor who acknowledged having prepared that application to the Court and has represented the applicant throughout these proceedings, including at hearing before me. I infer from these matters that the solicitor had, and has, general authority to act for the applicant: see r 6.01(4) of the Former Court Rules and Rules.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File numbers:	SYG 514 of 2018 SYG 1467 of 2018
Judgment of:	JUDGE GIVEN
Date of judgment:	20 May 2022
Catchwords:	MIGRATION – imaginative use of judicial review proceedings relating to first refusal of tourist visa as a basis for second tourist visa application – limited ways to say “return to China”
Legislation:	Migration Act 1958 (Cth) ss 57, 65, 359A, 424A Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Federal Circuit Court Rules 2001 (Cth) Migration Regulations 1994 (Cth)
Cases cited:	AOY17 v Minister For Immigration & Anor [2018] FCCA 1610 AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10 Carrascalao v Minister forImmigration and Border Protection (2017) 252 FCR 352 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 Nanre v Minister for Immigration and Border Protection (2015) 232 FCR 80 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 SZWBH v Minister for Immigration and Border Protection (2015) 229 FCR 317 WAFK v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 209
Division:	Division 2 General Federal Law
Number of paragraphs:	59
Date of hearing:	8 March 2022
Place:	Sydney
Solicitor for the Applicant:	Mr G Lu of Cowise Solicitors
Counsel for the Respondent:	Mr T Liu
Solicitor for the Respondent:	Australian Government Solicitor

SYG 514 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	FEI LUO Applicant
AND:	MINISTER FOR HOME AFFAIRS Respondent

ORDER MADE BY:	JUDGE GIVEN
DATE OF ORDER:	20 MAY 2022

SYG 1467 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	FEI LUO Applicant
AND:	MINISTER FOR HOME AFFAIRS Respondent