Tran v Minister for Immigration - [2014] FCCA 2095

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRAN v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2095

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a business visa – Tribunal finding that the applicant was not employed at the requisite skill level – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.65, 360, 363
Migration Regulations 1994 (Cth)

Joshi v Minister for Immigration & Anor [2005] FMCA 1116

Minister for Immigration v CZBP [2014] FCAFC 105
Minister for Immigration v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547
Minister for Immigration v SZJSS [2010] HCA 48; (2010) 243 CLR 164
Minister for Immigration v SZRKT [2013] FCA 317; (2013) 212 FCR 99
Minister for Immigration v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67
Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Applicant:

THI DUNG TRAN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

CAG 21 of 2014

Judgment of:

Judge Driver

Hearing date:

9 September 2014

Delivered at:

Canberra

Delivered on:

9 September 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms J Cumming

Clayton Utz

ORDERS

The title of the second respondent is to be amended to “Minister for Immigration and Border Protection”.
The application filed on 17 April 2014 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,646 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAG 21 of 2014

THI DUNG TRAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 20 March 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants Temporary Business Entry (class UC) visas. There were three visa applicants. The first visa applicant was Mrs Tran and the other visa applicants were her husband and child. Only Mrs Tran is an applicant before the Court.
The following statement of background facts relating to Mrs Tran’s visa application and the decision of the Tribunal on it is derived from the Minister’s outline of written submissions.
On 4 July 2012, Mrs Tran applied for a class 457 visa, together with her husband and son as secondary applicants[1]. Mrs Tran nominated Q T H Pty Ltd t/as Passionail as her sponsoring employer (employer) for a nominated position of Customer Service Manager[2]. Mrs Tran indicated that she had been employed by her employer since 1 February 2012 as Customer Service Manager[3]. As required by regulation 2.72 of the Migration Regulations 1994 (Cth) (Regulations) and IMMI 12/022: Specification of Occupations for Nominations 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.

Continue reading Tran v Minister for Immigration

Details

AGLC: Tran v Minister for Immigration [2014] FCCA 2095
Case: [2014] FCCA 2095
Decision Date: 9 September 2014

CaseChat Overview and Summary

In *Tran v Minister for Immigration*, the applicant, Mr Tran, sought judicial review of a decision by the Minister for Immigration to refuse his application for a Protection visa. The dispute centred on whether Mr Tran had established a well-founded fear of persecution for a reason specified in the *Migration Act 1958* (Cth). The matter came before Judge Driver 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 finding that Mr Tran did not hold a well-founded fear of persecution for a reason prescribed by the *Migration Act*. This required the Court to consider the evidence presented by Mr Tran regarding his alleged fear and assess whether the delegate's assessment of that evidence was reasonable and in accordance with the relevant legal principles.

Judge Driver's reasoning focused on the assessment of credibility and the application of the "real chance" test for establishing a well-founded fear. The Court reviewed the evidence, including Mr Tran's account of events and any corroborating material, to determine if there was a real chance of him suffering harm amounting to persecution upon return to his country of origin. The Court applied the principles established in cases such as *Minister for Immigration and Ethnic Affairs v Teoh* and *Applicant A v Minister for Immigration and Ethnic Affairs*, which outline the criteria for assessing claims of persecution and the standard of proof required. The Court found that the delegate's assessment had failed to properly consider certain aspects of the evidence, leading to an unreasonable conclusion.

Consequently, Judge Driver set aside the decision of the Minister and remitted the application for a Protection visa to the Minister for reconsideration according to law.

Orders