Do v Minister for Immigration - [2019] FCCA 787

FEDERAL CIRCUIT COURT OF AUSTRALIA

DO & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 787

Catchwords:
MIGRATION – Application seeking review of the decision of the Administrative Appeals Tribunal (AAT) – whether the AAT erred in failing to consider certain evidence in determining whether the applicant’s marriage to the visa sponsor met the definition of “spouse” pursuant to s.5F of the Migration Act 1958 (Cth) and cl.820.211(2) of the Migration Regulations 1994 (Cth) – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 65, 348, 476

Migration Regulations 1994 (Cth), Sch 2, cls.820.211(2), 820.221(3)

Cases cited:

Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287; (1999) 58 ALD 30
Minister for Immigration v SZRKT [2013] FCA 317; (2012) 212 FCR 99; 302 ALR 671; 136 ALD 41
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107
Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451
NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446

First Applicant:

TRONG TU DO

Second Applicant:

VIET CUONG DO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1498 of 2017

Judgment of:

Judge Nicholls

Hearing date:

14 March 2019

Date of Last Submission:

14 March 2019

Delivered at:

Sydney

Delivered on:

29 March 2019

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

My T Nguyen Solicitors

Counsel for the Respondents:

Mr N Swan

Solicitors for the Respondents:

Mills Oakley Lawyers

ORDERS

The application made on 12 May 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1498 of 2017

TRONG TU DO

First Applicant

VIET CUONG DO

Second 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 12 May 2017 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 11 April 2017 which affirmed the decision of the Minister’s delegate to refuse the grant of a Partner (Temporary) (Class UK) visa (“the Partner visa”) to Mr Trong Tu Do.
The evidence before the Court is contained in a bundle of relevant documents filed by the Minister and tendered by the applicant (Court Book – “CB” – “AE 1”).

Background

Both parties’ written submissions set out the background of this matter, its history, and Mr Do’s claims. Given the focus of the applicant’s sole ground of the…

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 787
Decision Date: 29 March 2019

CaseChat Overview and Summary

This matter concerned an application for review of a decision made by the Administrative Appeals Tribunal (AAT). The applicant sought to challenge the AAT's determination regarding their eligibility for a visa, specifically whether their marriage to the visa sponsor satisfied the definition of "spouse" under section 5F of the *Migration Act 1958* (Cth) and clause 820.211(2) of the *Migration Regulations 1994* (Cth).

The central legal issue before the court was whether the AAT had erred in law by failing to consider certain evidence presented by the applicant when assessing the validity of their marriage for the purposes of the visa application. The applicant contended that this failure constituted a jurisdictional error.

Judge Nicholls found that no jurisdictional error had been demonstrated. The court's reasoning focused on the AAT's assessment of the evidence and its application of the relevant legislative provisions. The court concluded that the AAT had adequately considered the evidence before it in reaching its decision.

Consequently, the application for review was dismissed.

Orders