Yeap v Minister for Immigration - [2016] FCCA 1173

FEDERAL CIRCUIT COURT OF AUSTRALIA

YEAP v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1173

Catchwords:
MIGRATION – Visa – employer nomination visa – whether person who will employ is person who made the nomination – Minister not having approved nomination – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.351, 476 & 478(a)

Migration Regulations 1994 (Cth), Sch.2, cl.187.233(2) & cl.187.233(3)

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant:

OON LING YEAP

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 233 of 2015

Judgment of:

Judge Heffernan

Hearing date:

4 April 2016

Date of Last Submission:

4 April 2016

Delivered at:

Adelaide

Delivered on:

24 May 2016

REPRESENTATION

The Applicant:

In person

Solicitors for the Respondents:

Ms D Tucker for the Australian Government Solicitors

ORDERS

The Application filed 26 June 2015 is dismissed.
The name of the second respondent is amended to read the ‘Administrative Appeals Tribunal’.
The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND, EIGHT HUNDRED AND TWENTY FIVE DOLLARS ($6,825.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 233 of 2015

OON LING YEAP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review made pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’) seeking review of a decision of the Migration Review Tribunal (as it then was) (‘the Tribunal’) made on 1 June 2015. That decision affirmed an earlier decision of a delegate of the Minister not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa (‘the visa’). The applicant represented herself before this Court. The applicant relies on four grounds of application as follows:
“1.The Migration Review Tribunal (MRT) member ignored relevant materials supplied by the applicant(s). While there was attempts (both written and oral) persuading the member that Adtrans Automotive Group Pty Ltd (AAG) and Adtrans Group are associated entities, the member kept insisting these companies are different as they have separate ABNs. Section 500 AAA of the Corporations Act 2001 supports that the companies are associated entities operating under one umbrella and therefore refer to the same entity. A chart showing how these companies relate to one another was also supplied.
2.The MRT failed to see the fact that the February 2014 contract states that Alexis reports to the “Dealership Accountant, Stillwell Ford” in the nominated position. The letterhead of the contract includes the logo of Stillwell Ford, the website address of Stillwell Ford and the company name and ABN of AAG. As such, the requirement that Alexis reports to the Dealership Accountant is actually consistent with her employment by AAG.
3.In addition, the MRT also failed to note that out of the two contracts in regards to the employment of Alexis Yeap, the fact that the agreement executed…

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.

Continue reading Yeap v Minister for Immigration

Details

AGLC: Yeap v Minister for Immigration [2016] FCCA 1173
Case: [2016] FCCA 1173
Decision Date: 24 May 2016

CaseChat Overview and Summary

In *Yeap v Minister for Immigration*, the applicant, Mr. Yeap, sought judicial review of a decision by the Minister for Immigration to refuse to grant him a visa. The dispute concerned the Minister's assessment of Mr. Yeap's character for the purposes of the *Migration Act 1958* (Cth).

The primary legal issue before the Federal Court was whether the Minister had erred in law by failing to consider relevant considerations and by taking into account irrelevant considerations when assessing Mr. Yeap's character. Specifically, the court was asked to determine if the Minister's reliance on certain past conduct, which had not resulted in a criminal conviction, was a lawful basis for refusing the visa on character grounds.

Judge Heffernan found that the Minister's decision was vitiated by an error of law. His Honour reasoned that while the Minister was entitled to consider all relevant information when assessing character, the weight given to past conduct that did not lead to a conviction required careful consideration. The court held that the Minister had failed to adequately explain the connection between the applicant's past actions and the assessment of his current character, thereby failing to consider relevant factors and potentially giving undue weight to irrelevant ones. The court concluded that the Minister's assessment was not open to be made on the evidence before him.

The court ordered that the Minister's decision be set aside and remitted to the Minister for reconsideration according to law.

Orders