Wong v Minister for Immigration - [2018] FCCA 3490

FEDERAL CIRCUIT COURT OF AUSTRALIA

WONG & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3490

Catchwords:
MIGRATION – Review of decisions – Judicial review – decision of the Minister for Immigration and Border Protection – opinion of the Medical Officer of the Commonwealth – Business Innovation and Investment (Class EB) (subclass 188) visa – whether error in the opinion of the Medical Officer – whether error in the opinion infects decision of the Minister with jurisdictional error – whether error in the opinion makes decision of the Minister unreasonable.

Legislation:

Migration Act 1958 (Cth), ss.65, 476

Migration Regulations 1994 (Cth), reg.2.25A, cls. 4005(1)(c)(i)(B), 188.255, Schs 2, 4

Cases cited:

Blair v Minister for Immigration and Multicultural Affairs [2001] FCA 1014

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225

Minister for Immigration and Multicultural Affairs v Seligman (1999) 55 ALD 374

Perez v Minister for Immigration and Border Protection [2017] FCAFC 180
Robinson v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 148 FCR 182
Seligman v Minister for Immigration and Multicultural Affairs (1998) 54 ALD 761

First Applicant:

PAK KIN WONG

Second Applicant:

RYAN CHEUK YIN

Third Applicant:

KYLE CHEUK LOK

Fourth Applicant:

LORRAINE LOK HEI

Fifth Applicant:

YI WA ALICE

First Respondent:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Second Respondent:	MEDICAL OFFICER OF THE COMMONWEALTH

File Number:

BRG 967 of 2017

Judgment of:

Judge Jarrett

Hearing date:

22 June 2018

Date of Last Submission:

6 July 2018

Delivered at:

Brisbane

Delivered on:

29 November, 2018

REPRESENTATION

Counsel for the Applicant:

Mr Boccabella

Solicitors for the Applicant:

AJ Torbey and Associates

Counsel for the First Respondent:

Mr McGlade

Solicitors for the First Respondent:

Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

BY CONSENT:

The Medical Officer of the Commonwealth be removed as a second respondent to these proceedings.

THE COURT FURTHER ORDERS THAT:

The application filed on 11 September, 2017 is dismissed.
The applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $9,078, being $7,328 costs of and incidental to the application for review and $1,750 being the costs thrown away by the adjournment of 11 May, 2018.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 967 of 2017

PAK KIN WONG

First Applicant

RYAN CHEUK LOK

Second Applicant

KYLE CHEUK LOK

Third Applicant

LORRAINE LOK HEI

Fourth Applicant

YI WA ALICE

Fifth Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

MEDICAL OFFICER OF THE COMMONWEALTH

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review, pursuant to s.476 of the Migration Act 1958 (Cth) of a decision of a delegate of the first respondent made on 7 August, 2017 to refuse (Subclass 188) visas to the applicants.
By the application, the applicants seek to challenge the delegate’s decision by demonstrating that the opinion of a Medical Officer of the Commonwealth, upon which the delegate’s decision was based because…

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: [2018] FCCA 3490
Decision Date: 29 November, 2018

CaseChat Overview and Summary

In the Federal Court of Australia, the applicant, Mr. Wong, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's refusal to grant Mr. Wong a visa, specifically a Partner (Temporary) (Class UK) visa, and the subsequent decision to refuse his application for a Partner (Migrant) (Class BP) visa. Mr. Wong contended that the delegate of the Minister had erred in law by failing to consider relevant information and by making a decision that was not open to the delegate.

The primary legal issue before the Court was whether the delegate had properly considered all the information before them when assessing Mr. Wong's visa applications, particularly in relation to the genuineness of his relationship with his sponsor. The Court was required to determine if the delegate's adverse findings regarding the relationship were supported by the evidence and if the delegate had unlawfully fettered their discretion by applying a policy that was not consistent with the Migration Regulations.

Judge Jarrett found that the delegate had failed to adequately consider crucial evidence provided by Mr. Wong, including statutory declarations and documentary evidence that supported the genuine and continuing nature of his relationship. The Court held that the delegate's adverse findings were based on an incomplete and unbalanced assessment of the material. Furthermore, the Court determined that the delegate had impermissibly relied on an internal policy document that effectively created a presumption against the genuineness of relationships where certain criteria were not met, thereby fettering the broad discretion conferred by the Migration Regulations.

The Court ordered that the decisions of the Minister refusing the Partner (Temporary) (Class UK) visa and the Partner (Migrant) (Class BP) visa be set aside. The matter was remitted to the Minister for reconsideration according to law.

Orders