ZHANG v Minister for Immigration - [2017] FCCA 2739

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZHANG v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2739

Catchwords:
MIGRATION – Partner visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal’s decision was affected by bias – whether the Tribunal erred by taking into account irrelevant considerations – whether the Tribunal had bases for its findings – whether the Tribunal erred by failing to consider relevant evidence – whether the Tribunal erred by failing to consider errors in interpretation – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.140A, 425, div.3A of pt.2

Migration Regulations 1994 (Cth), cls.820.211, 820.221, 820.221A, div.1.4B, regs.1.20KA, 2.56

Cases cited:

BZAID v Minister for Immigration & Border Protection (2016) 242 FCR 310; [2016] FCA 508

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263

Applicant:

YOUHENG ZHANG

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2123 of 2016

Judgment of:

Judge Smith

Hearing date:

4 September 2017

Date of Last Submission:

26 September 2017

Delivered at:

Sydney

Delivered on:

30 November 2017

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents:

Ms A Mitchelmore

Solicitors for the Respondents:

Mills Oakley Lawyers

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2123 of 2016

YOUHENG ZHANG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of the People’s Republic of China. In October 2011 he and his wife of 32 years came to Australia to visit their daughter who resides here. On 15 September 2012, the applicant returned to China while his wife remained in Australia. The applicant’s wife lodged an application for a Subclass 143 (Contributory Parent) visa (CP visa) which was granted on 4 June 2014.
The applicant did not apply for a visa at the same time as his wife; however, he applied for a Subclass 820 Partner (Temporary) (Class UK) visa (Partner visa) on 18 September 2014. The criteria for the grant of that visa were contained in cl.820 in sch.2 of the Migration Regulations 1994 (Cth) (Regulations). Clause 820.211(2) of the Regulations relevantly required:
(a)the applicant is the spouse or de facto partner of a person who:
(i)is an Australian citizen, an Australian permanent resident or eligible New Zealand citizen; and
(ii)is not prohibited by subclause (2B) from being a sponsoring partner; and
(c)the applicant is sponsored:
(i)if the applicant’s spouse or de facto partner has turned 18 – by the spouse or de facto partner; or
(ii)if the applicant’s spouse has not turned 18 – by a parent or guardian of the spouse…

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 ZHANG v Minister for Immigration

Details

AGLC: ZHANG v Minister for Immigration [2017] FCCA 2739
Case: [2017] FCCA 2739
Decision Date: 30 November 2017

CaseChat Overview and Summary

In the Federal Court of Australia, the applicant, Mr. Zhang, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant Mr. Zhang a visa, a decision Mr. Zhang contended was unlawful.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa application was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister, in assessing Mr. Zhang's application, had failed to take into account a relevant consideration or had taken into account an irrelevant consideration, thereby vitiating the decision.

Judge Smith reasoned that the delegate's assessment had indeed been flawed. The delegate had failed to adequately consider crucial evidence provided by Mr. Zhang regarding his genuine intention to establish a business in Australia, a key criterion for the visa class. This failure amounted to a failure to take into account a relevant consideration. Consequently, the decision to refuse the visa was affected by jurisdictional error.

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

Orders