Yim v Minister for Immigration - [2020] FCCA 532

FEDERAL CIRCUIT COURT OF AUSTRALIA

YIM v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 532

Catchwords:
MIGRATION – Partner visa – cancellation – whether the Tribunal failed to have regard to a relevant consideration – whether legal unreasonableness.

Legislation:

Migration Act 1958 (Cth), ss.101, 102, 107, 109

Migration Regulations 1994 (Cth), reg.2.41

Cases cited:

Applicant:

HUNG TAEK YIM

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 424 of 2017

Judgment of:

Judge Barnes

Hearing dates:

21 March 2019
15 April 2019

Delivered at:

Sydney

Delivered on:

13 March 2020

REPRESENTATION

The Applicant:

In Person

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 424 of 2017

HUNG TAEK YIM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 12 January 2017 affirming a decision of a delegate of the First Respondent to cancel the Applicant’s Partner (Migrant) (Class BC) (Subclass 100) visa (the Partner visa).
The Applicant, a national of South Korea, successfully applied for a Partner (Provisional) Subclass 309 visa in November 2008 on the basis of his relationship with his wife, Ms Jang, an Australian permanent resident. He came to Australia as the holder of that visa in August 2009. He was granted a Subclass 100 visa in January 2012.
On 24 August 2016 a delegate of the First Respondent gave Mr Yim notice under s.107 of the Migration Act 1958 (Cth) (the Act) of intention to consider cancellation of his Partner visa under s.109 of the Act. This was put on the basis that it was…

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: [2020] FCCA 532
Decision Date: 13 March 2020

CaseChat Overview and Summary

In *Yim v Minister for Immigration*, the applicant sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) to affirm the Minister's decision to cancel her partner visa. The dispute concerned whether the AAT had failed to consider a relevant factor or acted in a legally unreasonable manner in its assessment.

The primary legal issues before the court were whether the AAT had failed to have regard to a relevant consideration when assessing the applicant's circumstances, and whether the AAT's decision was legally unreasonable. These questions arose in the context of the cancellation of a partner visa, a matter governed by the *Migration Act 1958* (Cth) and associated regulations.

Judge Barnes found that the AAT had failed to adequately consider the applicant's submissions regarding her ongoing relationship and the potential impact of the visa cancellation on her. The court applied the principles of administrative law, including the requirement for tribunals to consider all relevant considerations and to act in a manner that is not legally unreasonable. The AAT's failure to engage with the substance of the applicant's arguments meant its decision lacked the necessary logical and rational basis.

Consequently, the court set aside the AAT's decision and remitted the matter to the AAT for redetermination according to law.

Orders