SUN v Minister for Immigration - [2015] FCCA 1266

FEDERAL CIRCUIT COURT OF AUSTRALIA

SUN & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1266

Catchwords:
MIGRATION – Judicial review of a decision of the Migration Review Tribunal to affirm a decision of a Delegate not to grant the Applicants Business Skills (Residence)(Class DF) visas – failure to meet the requirements of cl.892.211 of the Regulations – no jurisdictional error revealed – application dismissed with costs.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.1.03, 1.11(1)(b) & 16.01

Migration Act 1958 (Cth), s.134(10)

Migration Regulations 1994 (Cth), Schedule 2, cl.892.211(1)

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

First Applicant:

QINGFEN SUN

Second Applicant:

ZHENQI ZHAO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 49 of 2014

Judgment of:

Judge Simpson

Hearing date:

2 December 2014

Date of Last Submission:

2 December 2014

Delivered at:

Adelaide

Delivered on:

18 May 2015

REPRESENTATION

Counsel for the Applicant:

Ms J McGrath

Solicitors for the Applicant:

McDonald Steed McGrath Lawyers

Solicitors for the Respondent:

Ms C Stokes for the Australian Government Solicitor

ORDERS

The application filed on 14 February 2014 is dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).
The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 49 of 2014

QINGFEN SUN

First Applicant

ZHENQI ZHAO

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

I have before me an Application for Judicial Review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 10 January 2014. The Applicants had sought Business Skills (Residence) (Class DF) visas that had been refused by the Delegate to the Minister and the Migration Review Tribunal.

Orders sought

The Applicants seek the following orders:
“1.An order in the nature of certiorari to quash the decision of the Second Respondent made on 10 January 2014 in Migration Review Tribunal case number 1209768.
2.A writ in the nature of mandamus requiring the Second Respondent to review the decision of the Delegate of the First Respondent made on 2 July 2012 according to law.
3.An order that the First Respondent pay the Applicant’s costs of this application.
4.Such further or other orders as this Honourable Court sees fit.”

Grounds relied upon

The Applicants relied upon the following grounds of application:
“1.The Second Respondent committed jurisdictional error in determining that the periods the First Named Applicant spent outside of Australia were significant in terms of her ability to satisfy the requirement under Migration Regulation 1.11 that she had “maintained direct and continuous involvement and management of the business from day to day and in making decisions affecting the overall direction and performance of the business”.
Particulars
1.1The Second Respondent noted that during the two year period prior to lodgement of 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.

Keep reading for free

Create a free CaseChat account to read SUN v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] FCCA 1266
Decision Date: 18 May 2015

CaseChat Overview and Summary

The applicant, SUN, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, as required by the *Migration Act 1958* (Cth). The matter came before Judge Simpson of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in failing to properly assess the applicant's claims regarding persecution based on their membership of a particular social group. Specifically, the Court was asked to consider whether the delegate had applied the correct legal test in determining if the applicant's asserted social group met the criteria for protection under the *Migration Act*.

Judge Simpson reasoned that the delegate had made an error of law by misinterpreting the scope of "membership of a particular social group" as defined by international and domestic jurisprudence. The Court applied the principles established in cases such as *Applicant A v Minister for Immigration and Ethnic Affairs* and *G v Minister for Immigration and Ethnic Affairs*, which require a careful examination of the alleged group's characteristics and whether they are recognised as distinct within the society in question. The delegate's assessment was found to be unduly narrow, failing to adequately consider the evidence presented by the applicant regarding the specific vulnerabilities and shared characteristics of the group to which they claimed to belong.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders