Xu v Minister for Immigration

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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

Briginshaw v Briginshaw (1938) 60 CLR 336
M175 of 2002 v Minister for Immigration [2007] FCA 1212
Maroun v Minister for Immigration (2009) 112 ALD 424
Minister for Immigration v Kim (2014) 221 FCR 523
Minister for Immigration v SGLB (2004) 207 ALR 12
Minister for Immigration v SZGUR (2011) 241 CLR 594
Minister for Immigration v SZLIX (2008) 245 ALR 501
Minister for Immigration v SZSSJ (2016) 333 ALR 653
NABE v Minister for Immigration (No.2) (2004) 144 FCR 1
Nadinic v Drinkwater [2017] NSWCA 114
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Singh v Minister for Immigration (2016) 247 FCR 554
SZBEL v Minister for Immigration (2006) 228 CLR 152
SZFDE v Minister for Immigration (2007) 232 CLR 189
SZJBD v Minister for Immigration (2009) 179 FCR 109

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

  1. 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

  1. 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.

  2. The following statement of background facts is derived from the submissions of the parties. 

  3. 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…

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Details
Case
[2018] FCCA 58
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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