Ying v Minister for Immigration - [2015] FCCA 1089

FEDERAL CIRCUIT COURT OF AUSTRALIA

YING & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1089

Catchwords:
MIGRATION – Judicial review of a decision of the Migration Review Tribunal affirming a decision of a Delegate of the First Respondent not to grant the Applicant a Partner (Temporary) (Class UK) or a Partner (Residence) (Class BS) visa – no jurisdictional error disclosed – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.01

Migration Act 1958 (Cth), ss.5CB, 359A, 359B, 379C & 494C

Migration Regulations 1994 (Cth), regs.1.09A & 4.17; cls.820.221 & 801.221

Minister for Immigration and Border Protection v Pandey [2014] FCA 640
Minister for Immigration and Multicultural Affairs v Singh [2000] 98 FCR 77
Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172

First Applicant:

TAM SIN YING

Second Applicant:

TAM MUHAMMAD FAIZ SHU TUNG

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 181 of 2014

Judgment of:

Judge Simpson

Hearing date:

5 September 2014

Date of Last Submission:

5 September 2014

Delivered at:

Adelaide

Delivered on:

30 April 2015

REPRESENTATION

Solicitors for the Applicant:

Mr G Finlayson for Greg Finlayson Lawyers

Solicitors for the Respondents:

Mr P D'Assumpcao for the Australian Government Solicitors

ORDERS

The Application filed 23 May 2014, and the Amended Application filed 25 August 2014, are dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).
The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 181 of 2014

TAM SIN YING

First Applicant

TAM MUHAMMAD FAIZ SHU TUNG

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The First Applicant is the mother of the Second Applicant. They are Chinese nationals. The First Applicant (“the Applicant”) was born on 3 March 1979 and the Second Applicant on 23 July 2002.
The Applicant seeks a visa that would allow her and her child to live in Australia. The Applicant has nominated Mr Geoffrey Munn (“Mr Munn”), an Australian citizen born on 16 August 1927, as her sponsor. The Applicant says that Mr Munn is her de facto partner.
The Applicant seek judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 24 April 2014. The Tribunal affirmed a decision of the Delegate of the First Respondent not to grant the First Applicant either a Partner (Temporary)(Class UK) or a Partner (Residence)(Class BS) visa (“the visa”).

The Delegate

The Applicant lodged an application for the visa on 10 July 2012 with her young son as Secondary Applicant on the application. Refusal of the visa to the Applicant will mean that the Second Applicant’s application will not succeed.
On 26 September 2012, an officer of the Minister’s Department conducted an onsite visit to interview the Applicant and Mr Munn. The officer concluded that the Applicant’s de facto relationship with Mr Munn was not genuine.
On 22 March…

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: [2015] FCCA 1089
Decision Date: 30 April 2015

CaseChat Overview and Summary

The applicant, Ying, sought judicial review of a decision by the Migration Review Tribunal (MRT) which affirmed a delegate's refusal to grant her a Partner (Temporary) (Class UK) or Partner (Residence) (Class BS) visa. The matter came before Judge Simpson of the Federal Circuit Court of Australia.

The central legal issue before the Court was whether the MRT had committed a jurisdictional error in affirming the delegate's decision to refuse the visa applications. This required the Court to consider whether the MRT had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) to the facts of the applicant's case.

Judge Simpson found that no jurisdictional error had been disclosed. The Court's reasoning focused on the evidence before the MRT and whether the Tribunal had adequately considered all relevant factors in reaching its conclusion. The Court determined that the MRT had not acted outside its powers or failed to fulfil its statutory obligations, and therefore, the application for judicial review was dismissed.

Orders