Yap v Minister for Immigration - [2014] FCCA 2476

FEDERAL CIRCUIT COURT OF AUSTRALIA

YAP v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2476

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a bridging visa – whether the Tribunal misconstrued s.194 of the Migration Act 1958 (Cth) considered – the obligation of notification in that section must be met by the officer who takes a person into immigration detention.

Legislation:

Migration Act 1958 (Cth), ss.5, 189, 194, 195, 196

Migration Regulations 1994

Commonwealth of Australia v Fernando [2012] FCAFC 18

Tan v Minister for Immigration [2007] FCA 1427

Applicant:

LEE KIAN YAP

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2302 of 2014

Judgment of:

Judge Driver

Hearing date:

28 October 2014

Delivered at:

Sydney

Delivered on:

14 November 2014

REPRESENTATION

Counsel for the Applicant:

Mr J F Gormly

Counsel for the Respondents:

Mr J D Smith, SC

Solicitors for the Respondents:

DLA Piper

ORDERS

A writ of certiorari shall issue removing the record of the Migration Review Tribunal decision made on 10 July 2014 into this Court for the purposes of quashing it.
A writ of mandamus shall issue requiring the Migration Review Tribunal to redetermine the review application before it according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2302 of 2014

LEE KIAN YAP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 10 July 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant (Ms Yap) a Bridging E visa.
The following statement of background facts is derived from the submissions of the parties.
On 7 July 2009 Ms Yap, a Malaysian national, entered Australia on an Electronic Travel Authority visa (Class UD, subclass 976). That visa expired on 7 October 2009, and Ms Yap remained in Australia thereafter as an unlawful non-citizen.
Ms Yap claimed that she lived in Shepparton and formed a relationship with a man there.
On Sunday 22 June 2014 officers from the Victorian Police in Shepparton located Ms Yap there and took her to the local police station. The police made inquiries of the Immigration Status Service in Melbourne who confirmed that Ms Yap was an unlawful non-citizen.[1]
[1] Court Book (CB) 1 and 50
Following that confirmation, at 11:37pm on 22 June 2014 Constable Julie Haigh detained Ms Yap under s.189 of the Migration Act 1958 (Cth) (Migration Act).[2]
[2] CB 2
At 12.15pm on the same day Luke Cooper of the Immigration Status Service in Melbourne conducted by telephone a “Compliance Client Interview” with Ms Yap. The interview was conducted in English and without an interpreter.[3]
[3] CB 1
In the course of the interview Ms Yap indicated that she wanted to apply for a visa. The record of the interview does not show that…

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: [2014] FCCA 2476
Decision Date: 14 November 2014

CaseChat Overview and Summary

In the Federal Court of Australia, the applicant, Mr. Yap, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant Mr. Yap a visa.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister, in assessing Mr. Yap's application, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Judge Driver found that the delegate had indeed failed to consider a crucial piece of evidence that was relevant to Mr. Yap's visa application. This failure constituted a jurisdictional error because it meant the delegate did not properly exercise the power conferred upon them by the relevant legislation. The Court applied the principles of administrative law, emphasizing that a decision-maker must consider all relevant material placed before them.

Consequently, the Court quashed the Minister's decision to refuse the visa and remitted the matter to the Minister for reconsideration according to law.

Orders