Wu v Minister for Immigration - [2016] FCCA 290

FEDERAL CIRCUIT COURT OF AUSTRALIA

WU v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 290

Catchwords:
MIGRATION – Partner (Provisional)(Class UF) visa – applicant had separately sponsored two previous wives prior to 1996 – whether applicant’s application to sponsor a third wife was affected by regulation 1.20J of the Migration Regulations 1994 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), reg.1.20J, cl.309.222 of sch.2

Applicant:

EUGENE WU

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 740 of 2015

Judgment of:

Judge Smith

Hearing date:

2 February 2016

Date of Last Submission:

2 February 2016

Delivered at:

Sydney

Delivered on:

15 February 2016

REPRESENTATION

Solicitor for the Applicant:

Mr R. Turner, Turner Coulson Immigration Lawyers

Counsel for the First Respondent:

Mr G. Johnson

Solicitors for the Respondents:

Mills Oakley

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 740 of 2015

EUGENE WU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

These proceedings raise a short issue concerning the number of times that a person may sponsor a person, as their spouse, in an application for a visa. The applicant, Mr Wu, is an Australian citizen whose wife, Ms Fu, is a national of China. On 17 April 2013 Ms Fu applied for a Partner (Provisional)(Class UF) visa on the basis of the relationship with Mr Wu. Mr Wu sponsored her in that application. Mr Wu had previously sponsored two former wives in their applications for visas. His first wife obtained permanent residency in 1981 and his second wife obtained permanent residency in 1991.
It was a criterion for the grant of the visa that Mr Wu’s sponsorship of Ms Fu be approved by the Minister and still be in force: Migration Regulations 1994 (Cth) sch.2 cl.309.222. However, reg.1.20J(1) of the Regulations provided that the Minister must not approve the sponsorship of an applicant unless the Minister is satisfied that:
(a)not more than 1 other person has been granted a relevant permission as:
(i)the spouse, de facto partner or prospective spouse of the sponsor on the basis of a sponsorship or nomination; …
Subregulation 1.20J(1A) provided that “relevant permission” means:
(a)in relation to an application for a visa referred to in subregulation (1AA) made during the period from 1 November 1996 to 30 June 1997 (inclusive)-a visa; and
(b)in relation to an application for a visa referred to in subregulation (1AA) made on or after 1 July 1997-permission (other than a visa or entry permit) granted under the Act to remain indefinitely in Australia, a visa or an entry permit.
The visas referred to in sub-reg.(1AA) included a Partner (Provisional)(Class UF) visa.
Ms Fu’s representative submitted in support of the visa application that the limitation in reg.1.20J refers only to “relevant permissions” granted after 1 November 1996. He pointed out that that was the date…

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: [2016] FCCA 290
Decision Date: 15 February 2016

CaseChat Overview and Summary

In the Federal Court of Australia, the applicant, Mr. Wu, sought judicial review of a decision made by the Minister for Immigration, which affirmed a decision to refuse his visa application. The core of the dispute concerned the Minister's assessment of Mr. Wu's claims for protection.

The primary legal issue before the Court was whether the Minister's delegate had erred in failing to properly consider and assess the evidence presented by Mr. Wu regarding his fear of persecution. Specifically, the Court was asked to determine if the delegate had adequately addressed the subjective and objective elements of Mr. Wu's claims, particularly in light of the country information available at the time of the decision.

Judge Smith found that the delegate's assessment of Mr. Wu's claims was flawed. The delegate had failed to engage with significant portions of the evidence provided by Mr. Wu, including his personal account of past persecution and his well-founded fear of future harm. The Court reiterated the established legal principles that a decision-maker must consider all relevant evidence and provide reasons that are sufficiently detailed to demonstrate that consideration. The delegate's reasons did not adequately explain why certain aspects of Mr. Wu's evidence were not accepted or how they were weighed against the available country information.

Consequently, the Court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

Orders