Teng v Minister for Immigration - [2015] FCCA 1197

FEDERAL CIRCUIT COURT OF AUSTRALIA

TENG & ORS v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1197

Catchwords:
MIGRATION – Judicial review of decision of the Migration Review Tribunal – Tribunal refused application for Business Skills (Residence) (Class DF) visas – Applicants did not satisfy cl.892.211 of Schedule 2 of the Migration Regulations because the main business nominated by the Applicant did not meet the definition of a qualifying business.

Legislation:

Acts Interpretation Act 1901 (Cth), s.15AA

Export Expansions Grant Act 1978 (Cth), s.4

Federal Circuit Court Rules 2001 (Cth), r.16.01

Migration Act 1958 (Cth), s.65

Migration Regulations 1994 (Cth), Schedule 2, cls.892.211 & 892.221 and regs.1.03 & 1.11

Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 132 FCR 93
Li v Minister for Immigration and Citizenship [2011] HCA Trans 309
Trevisan & Anor v Commissioner of Taxation (1991) 29 FCR 157
GTK Trading Pty Ltd v Export Development Grants Board (1981) 40 ALR 375

First Applicant:

CHING-FENG TENG

Second Applicant:

MEI-LI LINH

Third Applicant:

SHAO-CHIEH TENG

Fourth Applicant:

WEN-CHIEH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 30 of 2014

Judgment of:

Judge Simpson

Hearing date:

15 October 2014

Date of Last Submission:

15 October 2014

Delivered at:

Adelaide

Delivered on:

18 May 2015

REPRESENTATION

Counsel for the Applicant:

Mr S D Ower

Solicitors for the Applicant:

McDonald Steed McGrath

Counsel for the Respondents:

Mr S A McDonald

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

The Application filed on 23 January 2014 is dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).
The Applicants shall pay the First Respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 30 of 2014

CHING-FENG TENG

First Applicant

MEI-LI LINH

Second Applicant

SHAO-CHIEH TENG

Third Applicant

WEN-CHIEH

Fourth 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 19 December 2013 to affirm a decision of a Delegate to refuse to grant the Applicants’ Business Skills (Residence) (Class DF) visas under s.65 of the Migration Act 1958 (Cth) (“the Act”).

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 19 December 2013 in Migration Review Tribunal case number 1108188.
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 19 July 2013 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 of review

The Applicants’ grounds of the Application are as follows:
“1.The second respondent committed jurisdictional error in determining that the policy as expressed in…

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: [2015] FCCA 1197
Decision Date: 18 May 2015

CaseChat Overview and Summary

The applicant, Mr. Teng, sought judicial review of a decision by the Minister for Immigration to refuse his application for a protection visa. The Minister's decision was based on the applicant's alleged failure to provide sufficient information to establish a real chance of persecution. The matter came before Judge Simpson of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had properly considered all the evidence before them when assessing the applicant's claims for protection, particularly in relation to the risk of persecution should he be returned to his country of origin. This involved an examination of the delegate's assessment of the credibility of the applicant's statements and the weight given to the country information relied upon.

Judge Simpson found that the delegate had failed to adequately consider certain key pieces of evidence provided by the applicant, which were relevant to his claims of persecution. Specifically, the delegate had not properly engaged with the applicant's evidence regarding his specific circumstances and the potential consequences he might face. The Court reiterated the principle that a decision-maker must genuinely consider all relevant evidence and not simply dismiss it without proper evaluation, especially when assessing claims of persecution under the Migration Act 1958 (Cth).

The Court quashed the Minister's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders