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Sun v MIBP

Sun v MIBP

Case [2015] FCCA 2479 11 September 2015

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Administrative Law

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SUN & ORS v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2479

Catchwords:
MIGRATION – Business Skills (Residence) (Class DF subclass 892 State/Territory Sponsored Business Owner) visa – whether documents provided to tribunal were bogus documents – where tribunal found document were bogus documents.

Legislation:

Migration Act 1958 (Cth), s.97

Migration Regulations1994, regs.1.03, 1.11, 1.11A, Schedule 2 cll.892.211, 892.221, 892.223(a); Schedule 4 PIC 4020

Batra v MIAC (2013) 212 FCR 84
George v Rockett (1990) 170 CLR 104
Hussien v Chong Fook Kam [1970] AC 942
Jasbeer Singh v Minister for Immigration and Ethnic Affairs (Unreported, Federal Court of Australia, 6 December 1994, NG319/1994)
Mudiyanselage v MIAC (2013) 211 FCR 27
NBDY v Minister for Immigration and Multicultural Affairs [2006] FCAFC 145
Singh v Minister for Immigration & Anor [2013] FCCA 1435
Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570

First Applicant:

JIBO SUN

Second Applicant:

YUECHANG TAN

Third Applicant:

JUNHAO SUN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

BRG 539 of 2013

Judgment of:

Judge Jarrett

Hearing date:

27 March 2014

Date of Last Submission:

27 March 2014

Delivered at:

Brisbane

Delivered on:

11 September 2015

REPRESENTATION

Counsel for the Applicants:

Ms Brennan

Solicitors for the Applicants:

Hartnett Lawyers

Counsel for the Respondents:

Mr Smith

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The further amended application filed on 6 March, 2014 be dismissed.
The applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 539 of 2013

JIBO SUN

First Applicant

YUECHANG TAN

Second Applicant

JUNHAO SUN

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By their further amended application filed on 6 March, 2014 the applicants seek judicial review of a decision of the second respondent made on 3 June, 2013 which affirmed a decision of a delegate of the first respondent to refuse the applicants Business Skills (Residence) (Class DF subclass 892 State/Territory Sponsored Business Owner) visas. The applicants seek relief in the form of writs of certiorari and mandamus.
Generally speaking, the issue in this application is whether the second respondent was correct when it found that the applicants had given to the tribunal bogus documents within the meaning of that term as used in public interest criteria 4020 of schedule 4 to the Migration Regulations1994.

Background

On 5 January, 2010 the applicant, Jibo Sun, applied for a Business Skills (Residence) (Class DF subclass 892 State/Territory Sponsored Business Owner) visa. The other applicants, Yuechang Tan and Junhao Sun are members of Mr Sun’s family unit and they sought visas as members of his family unit. Their entitlement to visas is entirely dependent upon the success of Mr Sun’s application. They advance no independent grounds for the grant of a visa.
To be successful in his…

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.

Continue reading Sun v MIBP

Details

AGLC: Sun v Minister for Immigration [2015] FCCA 2479
Case: [2015] FCCA 2479
Decision Date: 11 September 2015

CaseChat Overview and Summary

Sun (the applicant) sought judicial review of a decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) to refuse to grant her a visa. The Administrative Appeals Tribunal (AAT) had affirmed the Minister's decision. The applicant argued that the Minister's delegate had failed to consider relevant information when making the original decision, and that the AAT had erred in law by failing to provide adequate reasons for its decision. The matter came before Judge Jarrett of the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were whether the Minister's delegate had failed to consider relevant information, specifically a letter from the applicant's employer, and whether the AAT had breached its duty to provide adequate reasons for its decision under section 43(2) of the Administrative Appeals Tribunal Act 1975 (Cth). The applicant contended that the delegate's failure to consider this letter meant the decision was vitiated by jurisdictional error.

Judge Jarrett found that the AAT had indeed failed to provide adequate reasons for its decision. The Tribunal's reasons did not sufficiently explain how it had considered and weighed the evidence before it, particularly the employer's letter, in reaching its conclusion. This failure amounted to an error of law. Consequently, the Court did not need to definitively determine whether the original delegate had failed to consider relevant information, as the AAT's error necessitated setting aside its decision.

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

Orders