Yung v Minister for Immigration - [2020] FCCA 680

FEDERAL CIRCUIT COURT OF AUSTRALIA

YUNG & ORS v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 680

Catchwords:
MIGRATION – Application for review of decision of the Administrative Appeals Tribunal (the Tribunal) – whether the Tribunal erred by taking irrelevant considerations into account – whether the Tribunal erred by failing to take relevant considerations into account – whether the Tribunal erred by failing to apply the correct and relevant test for evidence under Public Interest Criterion 4005 of Schedule 4 to the Migration Regulations 1994 (Cth) – whether the Tribunal failed to apply the statutory criteria by reference to the hypothetical person test – ground not made out – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476
Migration Regulations 1994 (Cth), reg.2.25A, sch.2, cls.835.224, 835.322, 838.224, sch.4, pt.1, criterion 4005

Cases cited:

Minister for Aboriginal Affairs v Peko-Wallsend Ltd. [1986] HCA 40; (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 363 ALR 599; (2019) 75 AAR 75; (2019) 163 ALD 38
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123; (2018) 92 ALJR 780; (2018) 359 ALR 1
Robinson v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1626; (2005) 148 FCR 182

First Applicant:

ROLAND YUNG

Second Applicant:

KIMBERLEY YUNG

Third Applicant:

JACKSON YUNG

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 428 of 2017

Judgment of:

Judge Nicholls

Hearing date:

12 March 2020

Date of Last Submission:

12 March 2020

Delivered at:

Sydney

Delivered on:

25 March 2020

REPRESENTATION

Counsel for the Applicant:

Mr A. Kaylinger

Solicitors for the Applicant:

WB Legal

Counsel for the Respondents:

Mr M.P. Cleary

Solicitors for the Respondents:

Mills Oakley Lawyers

ORDERS

The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application made on 13 February 2017 and as amended is dismissed.
The applicants pay the first respondent’s costs set in the amount of $5400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 428 of 2017

ROLAND YUNG

First Applicant

KIMBERLEY YUNG

Second Applicant

JACKSON YUNG

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 13 February 2017 and amended on 3 May 2017 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”), which on 16 January 2017 affirmed…

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 680
Decision Date: 25 March 2020

CaseChat Overview and Summary

This matter concerned an application for review of a decision made by the Administrative Appeals Tribunal. The applicant, Yung, sought to challenge the Tribunal's decision regarding their application for a visa. The core of the dispute revolved around allegations that the Tribunal had erred in its decision-making process.

The primary legal issues before the court were whether the Tribunal had taken irrelevant considerations into account, failed to consider relevant factors, and incorrectly applied the evidentiary standards required under Public Interest Criterion 4005 of Schedule 4 to the *Migration Regulations 1994* (Cth). A further issue was whether the Tribunal had failed to apply the statutory criteria by reference to the hypothetical person test.

The court found that the grounds of review were not made out. It determined that no jurisdictional error had been revealed in the Tribunal's decision-making process. Consequently, the application for review was dismissed.

Orders