Yee Joy v MIBP - [2015] FCCA 2537

FEDERAL CIRCUIT COURT OF AUSTRALIA

YEE JOY v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2537

Catchwords:
MIGRATION – Carer visa – refusal – whether care could be provided by a relevant relative or obtained from a service in Australia – whether the applicant was willing and able to provide substantial and continuing assistance given the applicant’s other family commitments – whether the Tribunal failed to take into account a relevant consideration, namely that the improvement in condition of the caree based on the applicant’s care – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), reg.1.15AA(1), pt.836 of sch.2

Applicant:

JUSTIN NICHOLAS YEE JOY

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 468 of 2015

Judgment of:

Judge Smith

Hearing date:

26 August 2015

Date of Last Submission:

26 August 2015

Delivered at:

Sydney

Delivered on:

17 September 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent:

Ms J. Davidson

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 468 of 2015

JUSTIN NICHOLAS YEE JOY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This case concerns an important subclass of visas that entitles a person to remain in Australia in order to provide assistance to a sick relative. There are a number of criteria for the grant of that visa, however, for present purposes, the critical criteria are contained in reg.1.15AA(1) of the Migration Regulations 1994 which, broadly stated, are:
a)the assistance needed by the sick relative cannot reasonably be:
i)provided by any other relative of the resident, being a relative who is an Australian citizen, and Australian permanent resident or an eligible New Zealand citizen; or
ii)obtained from welfare, hospital, nursing or community services in Australia; and
b)the applicant is willing and able to provide to the relative substantial and continuing assistance of the kind needed.
The applicant applied for a visa in this subclass in order to provide assistance to his maternal uncle who was not only effectively blind but suffered the complications of end stage renal failure. The Tribunal was not satisfied that the applicant met either of the above criteria and so affirmed the decision of a delegate of the Minister to refuse to grant the applicant the visa.
The applicant seeks judicial review of the Tribunal’s decision pursuant to this Court’s jurisdiction under s.476 of the Migration Act 1958. The Court may only grant the relief sought if there is a jurisdictional error in the Tribunal’s decision. For that reason, the issue in these proceedings is not whether the applicant met the criteria for the grant of the visa, but rather, whether, in determining that it was not satisfied that that was the case, the Tribunal fell into error affecting its jurisdiction.
For the reasons that follow, it is concluded that there is no error affecting the…

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 Yee Joy v MIBP

Details

AGLC: Yee Joy v Minister for Immigration [2015] FCCA 2537
Case: [2015] FCCA 2537
Decision Date: 17 September 2015

CaseChat Overview and Summary

In *Yee Joy v MIBP*, the Federal Court of Australia considered a dispute between Yee Joy and the Minister for Immigration, Border Protection and Citizenship. The case concerned the Minister's decision to refuse to grant Yee Joy a visa.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa was vitiated by a failure to provide procedural fairness. Specifically, Yee Joy argued that the Minister had failed to notify him of adverse information that was relied upon in the decision-making process, thereby preventing him from responding to that information.

Justice Smith reasoned that procedural fairness requires a decision-maker to afford a person the opportunity to comment on adverse information that is credible, relevant, and significant to the ultimate decision. In this instance, the Court found that the information relied upon by the Minister was indeed adverse and had not been adequately disclosed to Yee Joy. Consequently, the Court held that Yee Joy had been denied procedural fairness.

The Court made orders setting aside the Minister's decision and remitting the matter to the Minister for reconsideration according to law.

Orders