LUO v Minister for Immigration - [2019] FCCA 2193

FEDERAL CIRCUIT COURT OF AUSTRALIA

LUO v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2193

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether s.359A of the Migration Act 1958 (Cth) applied to certain items of information – whether Tribunal conducted itself in a way to give rise to a reasonable apprehension of bias – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5F, 57, 359A, 424A
Migration Act 1958 (Cth), Schedule 2, cl.820.211(2)(d)

Cases cited:

Applicant:

HUIMIN LUO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1060 of 2017

Judgment of:

Judge Manousaridis

Hearing date:

24 August 2018

Date of Last Submission:

24 August 2018

Delivered at:

Sydney

Delivered on:

15 August 2019

REPRESENTATION

Counsel for the Applicant:

Mr D Godwin

Solicitors for the Applicant:

Teleo Immigration Lawyers

Counsel for the First Respondent:

Mr M J Smith

Solicitors for the First Respondent:

Mills Oakley

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1060 of 2017

HUIMIN LUO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This application 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 (Temporary) (Class UK) visa (Partner visa) raises two questions. The first is whether s.359A of the Migration Act 1958 (Cth) (Act) applied to certain information that had been provided to the Tribunal. The second question is whether, because of the matters to which I refer later in these reasons, the Tribunal so conducted itself as to give rise to a reasonable apprehension of bias.

Background

The applicant is a citizen of the People’s Republic of China. She first arrived in Australia on 14 March 2015 on a tourist visa which was due to expire on 14 June 2015.[1] On 10 June 2015 the applicant applied for a further tourist visa, which was granted on 11 August 2015. That visa was valid only until 31 August 2015. The applicant has not held any “substantive visa”, as that expression is defined in s.5 of the Act, after 31 August 2015, and obtained no other visa until 31…

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 2193
Decision Date: 15 August 2019

CaseChat Overview and Summary

The applicant, LUO, sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed the Minister for Immigration's refusal to grant a protection visa. The core of the dispute concerned the application of section 359A of the *Migration Act 1958* (Cth) to certain information considered by the Tribunal, and whether the Tribunal's conduct gave rise to a reasonable apprehension of bias. The matter was heard by Judge Manousaridis in the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were: first, whether section 359A of the *Migration Act* applied to the specific items of information that the applicant contended should have been considered under that provision; and second, whether the Tribunal's proceedings were conducted in a manner that would lead a reasonable observer to apprehend bias on the part of the Tribunal.

Judge Manousaridis reasoned that section 359A, which deals with the assessment of information provided by an applicant for a protection visa, did not apply to the information in question. The Court found that the information did not fall within the scope of the section as it was not information that the applicant had provided in support of their claim. Regarding the apprehension of bias, the Court found that the applicant had not established that the Tribunal's conduct gave rise to a reasonable apprehension of bias. The Court concluded that the Tribunal had properly considered the evidence before it and conducted its proceedings fairly.

The application for judicial review was dismissed.

Orders