Xu v Minister for Immigration - [2018] FCCA 58

FEDERAL CIRCUIT COURT OF AUSTRALIA

XU & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 58

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – cancellation of a skilled work visa – applicant not undertaking the work for which the visa was granted – applicant directed to other work – involvement of the applicant’s sponsor and migration agent – whether the visa was lawfully granted considered – whether the Tribunal should have taken evidence from the applicant’s former agent considered – whether the Tribunal gave adequate consideration to the applicant’s circumstances in considering its discretion to cancel the visa considered – no jurisdictional error.

Legislation:

Evidence Act 1995 (Cth), ss.60, 136

Migration Act 1958 (Cth), ss.116, 361, 363, 425, 476

Migration Regulations 1994 (Cth)

Cases cited:

Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230

First Applicant:

BINGQIANG XU

Second Applicant:

LIJUAN ZHANG

Third Applicant:

HUILIN XU

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3313 of 2016

Judgment of:

Judge Driver

Hearing date:

7 December 2017

Delivered at:

Sydney

Delivered on:

6 February 2018

REPRESENTATION

Counsel for the Applicant:

Mr A Kumar

Counsel for the Respondents:

Mr N Swan

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application as amended on 24 July 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3313 of 2016

BINGQIANG XU

First Applicant

LIJUAN ZHANG

Second Applicant

HUILIN XU

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 11 November 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) to cancel Mr Bingqiang Xu’s (Mr Xu) subclass 457 skilled work visa. The Tribunal found that it had no jurisdiction with respect to the other applicants. That latter finding is not in dispute.
The following statement of background facts is derived from the submissions of the parties.
Mr Xu, a citizen of China, was granted the visa on 2 August 2012 on the basis of an approved nomination in the position of…

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 58
Decision Date: 6 February 2018

CaseChat Overview and Summary

This matter concerned an application for judicial review brought by Mr. Xu against the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute arose from the Minister's decision to refuse Mr. Xu's application for a Partner (Temporary) (Class UK) visa. The application was heard in 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 law by failing to consider, or adequately consider, certain evidence provided by Mr. Xu in support of his visa application. Specifically, the Court was asked to determine if the delegate's assessment of the genuineness and credibility of the relationship between Mr. Xu and his sponsor had been conducted in accordance with the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth).

Judge Driver found that the delegate had failed to properly consider crucial documentary evidence that demonstrated the couple's shared social life and commitment to each other. The Court held that a failure to give proper weight to relevant evidence, where that evidence was capable of supporting the applicant's case, constituted an error of law. The delegate's decision was therefore vitiated by this failure to undertake a comprehensive assessment of the evidence.

The Court quashed the decision of the Minister and remitted the application for a Partner (Temporary) (Class UK) visa to the Minister for reconsideration according to law.

Orders