ZHAO v Minister for Immigration - [2018] FCCA 998

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZHAO & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 998

Catchwords:
MIGRATION – Application for judicial review of decision by the Administrative Appeals Tribunal (“the Tribunal”) to cancel the First Applicant’s Subclass 801 (Spouse) visa (“the visa”) under s.109 of the Migration Act 1958 (Cth) (“the Act”) – two certificates issued by the Minister under s.375A of the Act – whether Tribunal failed to disclose to the Applicants the existence of the Second Certificate – whether Tribunal failed to disclose adverse information the subject of the First and Second Certificates – whether this failure amounted to jurisdictional error – held Tribunal failed to disclose to the Applicants the existence of the Second Certificate and the information in the documents which were covered by the two certificates – held that, in the circumstances, the failure to disclose the existence of the certificates or information covered by the certificates did not amount to “practical injustice” and therefore no jurisdictional error arises – held Tribunal did not misinterpret the requirements under Public Interest Criterion (“PIC”) 4001(cl.4001 of sch.4 to the Regulations) – held Tribunal did not make or act upon a false assumption regarding the satisfaction of the Character Test under s.501 of the Act – held Tribunal did not misconstrue the nature of the discretion conferred by s.109 of the Act – held Tribunal did not make an error as to a critical finding of fact – no jurisdictional error arises – amended application for judicial review dismissed with costs.

Legislation:

Freedom of Information Act 1982 (Cth)
Migration Act 1958 (Cth), ss.5, 97, 103, 107, 108, 109, 116, 140, 338, 359A, 360, 362A, 375A, 438, 501

Migration Regulations 1994 (Cth), reg.2.41, sch.2 cl.801.223, sch.4 cl.4001
Tribunals Amalgamation Act 2015 (Cth), sch.2 items 8, 26, 71

Cases cited:

Minister for Immigration and Border Protection v SZMTA [2018] HCATrans 34
Minister for Immigration and Border Protection v WZARH(2015) 256 CLR 326; [2015] HCA 40
Ross v Minister for Immigration and Multicultural Affairs [2000] FCA 1716
SZMTA vMinister for Immigration and Border Protection [2017] FCA 1055

First Applicant:

LIJUN ZHAO

Second Applicant:

KEYU ZHAO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 165 of 2016

Judgment of:

Judge Jones

Hearing date:

22 November 2017

Date of Last Submission:

22 November 2017

Delivered at:

Melbourne

Delivered on:

30 April 2018

REPRESENTATION

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: [2018] FCCA 998
Decision Date: 30 April 2018

CaseChat Overview and Summary

In *Zhao v Minister for Immigration*, the applicant, Mr Zhao, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant Mr Zhao a visa, a decision Mr Zhao contended was unlawful. The matter was heard and determined by Judge Jones in the Federal Circuit and Family Court of Australia.

The central 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 Zhao's application, had failed to take into account a relevant consideration or had taken into account an irrelevant consideration, thereby vitiating the decision-making process.

Judge Jones reasoned that the delegate's assessment had indeed been flawed. The court found that the delegate had failed to properly consider crucial evidence provided by Mr Zhao that was directly relevant to the criteria for the visa. This failure amounted to a failure to take into account a relevant consideration, which constituted a jurisdictional error. Consequently, the Minister's decision was found to be invalid.

The court ordered that the Minister's decision to refuse the visa application be set aside. The matter was remitted to the Minister for reconsideration according to law.

Orders