Vo v Minister for Immigration - [2014] FCCA 679

FEDERAL CIRCUIT COURT OF AUSTRALIA

VO v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 679

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of Other Family (Migration) (Class BO) visa – no reviewable error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65(1)(b), 358, 359(1), 360, 423

Migration Regulations 1994 (Cth), rr.1.03, 1.15AA

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Adebi v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 186
Australia Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297
Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59
Chen v Minister for Immigration and Citizenship [2011] FCAFC 56

Lafu v Minister for Immigration [2009] FCAFC 140
Minister for Immigration and Citizenship v MZYHS (2011) 119 ALD 534
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
MZYPW v Minister for Immigration (2012) 128 ALD 520
SZDMC v Minister for Immigration and Multicultural Affairs [2005] FCA 763
Tickner v Chapman (1995) 57 FCR 451
Waterford v Commonwealth (1987) 163 CLR 54

WZAQU v Minister for Immigration and Citizenship [2013] FCA 327

Applicant:

NGUYEN THI VO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 3102 of 2012

Judgment of:

Judge Lloyd-Jones

Hearing date:

12 July 2013

Delivered at:

Sydney

Delivered on:

11 April 2014

REPRESENTATION

Counsel for the Applicant:

Mr N Poynder

Solicitors for the Applicant:

Ms M Nguyen of

My T Nguygen Solicitors

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the First Respondent:

Ms H Dejean of

Australian Government Solicitors

The Second Respondent:

The Second Respondent filed a submitting notice of appearance.

ORDERS

The name of the First Respondent be amended to read “Minister for Immigration and Border Protection”.
The Application filed on 24 December 2012 and the Amended Application filed on 23 May 2013 is dismissed.
The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the Application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3102 of 2012

NGUYEN THI VO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application under the Migration Act 1958 (Cth) (“the Migration Act”) seeking judicial review in respect of a decision of the Migration Review Tribunal (the “Tribunal”), being MRT Case Number 1112308, a decision of Tribunal Member Alan Duri dated 28 November 2012, affirming the decision of a delegate of the Minister for Immigration and Border Protection (at the time of the decision the “Minister for Immigration and Citizenship”) (the “Minister”), to refuse to grant the applicants Other Family (Migrant) (Class BO) visas.
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.

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Details

Case: [2014] FCCA 679
Decision Date: 11 April 2014

CaseChat Overview and Summary

Vo sought judicial review of a decision by the Minister for Immigration to refuse her application for a protection visa. The Minister's delegate had determined that Ms Vo did not meet the criteria for a protection visa, specifically that she did not hold a genuine fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. The matter came before Lloyd-Jones J in the Federal Court of Australia.

The central legal issue before the Court was whether the delegate's decision was affected by jurisdictional error. This involved an examination of whether the delegate had properly considered all the evidence before them, including Ms Vo's claims of persecution, and whether the delegate had applied the correct legal test in assessing her fear of persecution. The Court was required to determine if the delegate had failed to take into account relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision.

Lloyd-Jones J found that the delegate had failed to adequately assess the evidence relating to Ms Vo's claims of persecution. Specifically, the delegate had not properly considered the cumulative effect of the various elements of Ms Vo's evidence, nor had they adequately engaged with the specific reasons for her fear. The Court held that a failure to properly assess and weigh all relevant evidence, particularly when it pertains to the core elements of a claim for protection, constitutes jurisdictional error. The delegate's assessment was found to be superficial and lacking in the necessary depth of analysis required by the Migration Act 1958 (Cth) and the relevant regulations.

The Court ordered that the decision of the Minister's delegate be set aside. The matter was remitted to the Minister for redetermination according to law.

Orders