Wu v Minister for Immigration - [2018] FCCA 1322

FEDERAL CIRCUIT COURT OF AUSTRALIA

WU v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1322

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a medical treatment visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.360
Migration Regulations 1994 (Cth)

Cases cited:

AMN16 & Ors v Minister for Immigration [2015] FCCA 2531

Minister for Immigration v SZFML (2006) 154 FCR 572; [2006] FCAFC 152
SZIMG v Minister for Immigration (2008) 167 FCR 362; [2008] FCA 368

Applicant:

QIULAN WU

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2277 of 2017

Judgment of:

Judge Driver

Hearing date:

22 May 2018

Delivered at:

Sydney

Delivered on:

22 May 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Mr T Galvin of Minter Ellison

INTERLOCUTORY ORDERS

Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application filed on 18 July 2017 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2277 of 2017

QIULAN WU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant, Ms Wu, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 16 June 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant to Ms Wu a medical treatment visa.
Background facts relating to this matter are set out in the Minister’s outline of submissions, filed on 15 May 2018.
Ms Wu is a Chinese national, who arrived in Australia on 1 September 2007 on a student visa.[1] Her last substantive visa ceased on 12 November 2012.[2]
[1] Court Book (CB) 71; [7]
[2] CB37 and 71; [7]
On 21 February 2017, Ms Wu applied for a medical treatment visa on the basis that she had arranged treatment for “post-medical conditions after recent termination of pregnancy surgery” for the period 20 February 2017 to 20 February 2018.[3]
[3] CB3–13
On 23 February 2017, the delegate refused to grant Ms Wu a medical treatment visa because she did not satisfy subclause 602.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[4] That subclause required, among other things, Ms Wu to satisfy criterion 3001 of Schedule 3, which she did not because she did not hold a substantive visa at the time of application and the visa application was not validly made within 28 days of her last substantive visa ceasing.
[4] CB35–37
Ms Wu subsequently applied to the Tribunal for review of the delegate's decision.[5] In that application, Ms Wu appointed Sophie Wang from Aussie Immigration Services as her representative and authorised recipient and provided an email address of sophie@ausimmi.com.au for correspondence with…

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 1322
Decision Date: 22 May 2018

CaseChat Overview and Summary

In the Federal Court of Australia, Justice Driver considered the application of Mr Wu for judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. Mr Wu sought to challenge the Minister's decision to refuse his application for a Protection visa. The core of the dispute concerned the lawfulness of the Minister's assessment of Mr Wu's claims for protection.

The primary legal issue before the Court was whether the Minister, in assessing Mr Wu's claims, had failed to properly consider or give adequate weight to certain evidence that was crucial to his case. Specifically, the Court was asked to determine if the Minister's delegate had acted unreasonably or unlawfully in their evaluation of the evidence presented by Mr Wu, particularly in relation to the risk of harm he alleged he would face if returned to his country of origin.

Justice Driver's reasoning focused on the principles of administrative law, particularly the duty of an administrative decision-maker to undertake a proper consideration of all relevant evidence. The Court examined the delegate's reasons for decision to ascertain if they demonstrated a genuine engagement with the evidence, or if they exhibited a failure to apprehend or give sufficient weight to material facts. The Court affirmed that while a delegate is not required to agree with the applicant's submissions, they must demonstrate that they have understood and considered the evidence presented. The delegate's reasons were found to be deficient in this regard, failing to adequately address key aspects of Mr Wu's evidence.

The Court found that the delegate's decision was affected by jurisdictional error due to the failure to properly consider the evidence. Accordingly, Justice Driver set aside the Minister's decision and remitted the application for a Protection visa to the Minister for redetermination according to law.

Orders