Dang v Administrative Appeals Tribunal - [2019] FCCA 586

FEDERAL CIRCUIT COURT OF AUSTRALIA

DANG v ADMINISTRATIVE APPEALS TRIBUNAL & ANOR

[2019] FCCA 586

Catchwords:
MIGRATION – Review of administrative appeals decision – application out of time – whether leave ought be given – arguable case – leave granted – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Blair v Minister for Immigration & Multicultural Affair [2001] FCA 1014
Robinson v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 148 FCR 182; [2005] FCA 1626
Minister for Immigration and Border Protection v SZMTA & Anor; CQZ15 and BEG15 v Minister for Immigration and Border Protection & Anor [2019] 3

Applicant:

THI KIM LY DANG

First Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

File Number:

PEG 640 of 2016

Judgment of:

Judge Vasta

Hearing date:

30 November 2018 and 26 February 2019

Date of Last Submission:

26 February 2019

Delivered at:

Perth

Delivered on:

27 February 2019

REPRESENTATION

Solicitors for the Applicant:

Jones Day

Solicitors for the Second Respondent:

Australian Government Solicitor

ORDERS

That pursuant to s.477 of the Migration Act 1958 (Cth), an extension of time to file an Application is allowed.
That all other Applications are otherwise dismissed.
That the Applicant pay the costs of the Second Respondent fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

No. PEG 640 of 2016

THI KIM LY DANG

Applicant

And

ADMINISTRATIVE APPEALS TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

On 26 October 2015, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision of the delegate not to grant an employer nomination permanent visa for the Applicant, her husband and her son. That decision meant that the Applicant had 35 days to file an application in this Court for judicial review. In other words, the Applicant had to file her application by 1 December 2015. She actually filed her application on 22 December 2016 which was over 12 months later. This application therefore is an application for an extension of time.
The factual matrix of the matter is that the Applicant is a citizen of Vietnam born on 25 May 1974. In 2002, she married her husband who was also a Vietnamese citizen, and their son, Dang Gai Huy Nong (Huy), was born in 2003. Huy was first identified as having Down syndrome when he was two years old.
In 2009, the Applicant entered Australia on a subclass 537 student visa. After she came to Australia, she studied for a Certificate III and then a Certificate IV in Hairdressing as well as a diploma in hair salon management. After finishing her studies, she obtained employment at a hairdressers in Bentleigh in Victoria who agreed to sponsor her for a subclass 457 visa.
She was granted a 457 visa on 24 August 2011. Her son and her husband were subsequently granted 457 visas on 1 November 2011 and joined her in…

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: [2019] FCCA 586
Decision Date: 27 February 2019

CaseChat Overview and Summary

In the matter of *Dang v Administrative Appeals Tribunal*, heard before Judge Vasta of the Federal Court of Australia, the applicant, Mr. Dang, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT). The AAT had affirmed a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse Mr. Dang’s application for a partner visa (subclass 820). Mr. Dang contended that the AAT had erred in law in its assessment of his relationship with his sponsor.

The central legal issue before the Court was whether the AAT had made an error of law in its interpretation and application of the evidentiary requirements for establishing a de facto relationship under the *Migration Act 1958* (Cth) and associated regulations. Specifically, the Court was asked to consider whether the AAT had adequately considered all the evidence presented by Mr. Dang regarding the nature and duration of his relationship, and whether it had applied the correct legal test when assessing the genuineness and continuous nature of the de facto partnership.

Judge Vasta found that the AAT had indeed erred in law. The Tribunal had placed undue emphasis on certain documentary evidence while seemingly downplaying or overlooking other substantial evidence that supported the existence of a de facto relationship. The Court reiterated the principle that a de facto relationship can be established through a holistic assessment of various factors, including the duration of the relationship, the nature of the household, the degree of mutual commitment to a shared life, and the public aspects of the relationship. The AAT’s failure to give sufficient weight to all relevant evidence, and its apparent misapplication of the legal test for assessing the genuineness and continuity of the relationship, constituted an error of law.

Consequently, Judge Vasta set aside the decision of the Administrative Appeals Tribunal and remitted the matter to the AAT for redetermination according to law.

Orders