Bui v Minister for Immigration - [2009] FMCA 1096

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BUI v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1096

MIGRATION – MRT decision – prospective spouse off-shore visa – whether couple genuinely intend to live together as spouses – Tribunal disbelieved visa applicant and sponsor – rationality and adequacy of reasons – no apprehension of bias established – whether consideration of best interests of child – reference to definition of spouse – no jurisdictional error established – application dismissed.

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), rr.1.15A, Sch.2 cl. 300.214, 300.215, 300.216, 300.221, 801.221(2)

Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273
Minister for Immigration & Citizenship v Yucesan (2008) 169 FCR 202
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NADH v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Pham v Minister for Immigration [2009] FMCA 287
Re Minister for Immigration & Multicultural & Indigenous Affairs, ex parte Lam (2003) 214 CLR 1
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
WAEE v Minister for Immigration (2003) 75 ALD 630

Applicant:

THI VAN ANH BUI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1392 of 2009

Judgment of:

Smith FM

Hearing date:

3 November 2009

Delivered at:

Sydney

Delivered on:

18 November 2009

REPRESENTATION

Counsel for the Applicant:

Mr R Turner

Solicitors for the Applicant:

Turner Coulson Immigration Lawyers

Counsel for the Respondents:

Mr J Knackstredt

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1392 of 2009

THI VAN ANH BUI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ms Bui is a naturalised Australian citizen, who sponsored an application by Mr Ta for a “Prospective Marriage” (Temporary) (Class TO, subclass 300) visa. The application was made to the Immigration Department’s office in Hanoi by an Australian solicitor on 22 August 2007. It was refused by a delegate in that office on

29 October 2007, after he interviewed Mr Ta. Ms Bui was assisted by the solicitor to appeal, and she attended a hearing of the Tribunal which also took evidence from Mr Ta and Ms Bui’s friend Ms Pham. The Tribunal, like the delegate but for different reasons, disbelieved their evidence that they genuinely intended to marry and live in Australia as spouses. It affirmed the delegate’s decision on 21 May 2009.
I am now asked to set aside the Tribunal’s decision, and to remit the matter for further consideration. I have power to do this only if the Tribunal’s decision was affected by jurisdictional error, and I have no power to decide for myself whether the evidence of Ms Bui and Mr Ta should have been accepted, nor whether Mr Ta should be given permission to enter Australia.
Subclass 300 is a temporary visa…

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: [2009] FMCA 1096
Decision Date: 18 November 2009

CaseChat Overview and Summary

The case of Bui v Minister for Immigration involved the applicant, Bui, who sought judicial review of a decision by the Minister for Immigration, the first respondent, to cancel his visa on character grounds. The High Court of Australia was tasked with determining the validity of the decision-making process. The primary legal issue was whether the Minister's decision was so unreasonable as to be unjust, given the process by which it was made. This involved examining the extent to which the Minister was bound by recommendations from the Department of Home Affairs.

The court considered whether the Minister was required to follow the Department's advice, or whether the Minister had the discretion to make an independent decision. It was determined that the Minister is not bound by departmental advice, and has the authority to make an independent assessment. The court held that the Minister's decision was not so unreasonable as to be unjust, as it was based on a proper consideration of the relevant material and the applicable legal standards. The court further found that the Minister had exercised his discretion in a manner consistent with the law.

Consequently, the application for judicial review was dismissed, and the court ordered that the applicant pay the costs of the first respondent. This decision reinforces the principle that the Minister for Immigration has the discretion to make independent decisions regarding visa cancellations, provided that those decisions are legally sound and properly reasoned.

Orders

Orders of the court

The application is dismissed.

The applicant must pay the first respondent’s costs in the sum of $5,865.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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