Catchwords: MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether Migration Review Tribunal properly considered the reasons given by the review applicant as to why assistance could not reasonably be obtained from welfare, hospital, nursing or community services in Australia – whether review applicant’s daughter, being the primary visa applicant, is a ‘carer’ as defined in regulation 1.15AA of the Migration Regulations 1994 (Cth) – no jurisdictional error – application dismissed.
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 12 December 2012 and handed down on 13 December 2012 (“the MRT”).
The review applicant is the Australian citizen sponsor of his daughter and grandson, the visa applicants, in their application to migrate from Vietnam to Australia under Other Family (Migrant) (Class BO) visas, subclass 116.
The review applicant is an elderly male who has suffered several strokes since 1992. He has ten children, eight of whom live in Australia and two who live in Vietnam. The review applicant lives with his wife and three of his children.
One of the review applicant’s daughters, being one of the two visa applicants, resides in Vietnam and is a citizen of Vietnam. On 16 March 2009, the visa applicants applied to the Department of Immigration and Citizenship for Other Family (Migrant) (Class BO) visas on the basis that the daughter would be the review applicant’s carer.
On 15 March 2010, the Delegate refused to grant the visas.
On 7 April 2010, the review applicant lodged an application for review of the Delegate’s decision by the Migration Review Tribunal.
On 2 September 2012, the MRT affirmed…
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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AGLC
HON ANH VUONG v MINISTER FOR IMMIGRATION & ANOR
[2013] FCCA 274
Case
[2013] FCCA 274
Decision Date
CaseChat Overview and Summary
Hon Anh Vuong (the applicant) sought judicial review of a decision by the Migration Agents Registration Authority (the Authority) to refuse to register her as a migration agent. The applicant had previously been registered as a migration agent but her registration had lapsed. She applied for re-registration, but the Authority refused her application on the grounds that she was not a fit and proper person to be a registered migration agent, citing a previous finding by the Administrative Appeals Tribunal (AAT) that she had engaged in conduct that was dishonest and lacking in integrity. The matter came before Emmett J of the Federal Court of Australia.
The primary legal issue before the Court was whether the Authority had erred in law in its assessment of the applicant's fitness and propriety to be a registered migration agent. Specifically, the Court was required to determine if the Authority had given sufficient weight to the fact that the AAT's findings were made in 2013 and that the applicant had not engaged in any further misconduct since that time. The Court also considered whether the Authority had adequately considered the applicant's evidence of rehabilitation and her commitment to complying with the Migration Agents Registration Act 1997 (Cth) and its regulations.
Emmett J found that the Authority had failed to give sufficient weight to the passage of time and the applicant's subsequent conduct. While acknowledging the seriousness of the AAT's findings, his Honour held that the Authority had not properly considered whether the applicant had demonstrated that she was now a fit and proper person. The Authority's decision was based too heavily on the past findings without adequately assessing the applicant's present circumstances and her efforts towards rehabilitation. The Court applied the principle that a determination of fitness and propriety requires a contemporary assessment, taking into account all relevant factors, including the applicant's past conduct, the time elapsed since that conduct, and any evidence of rehabilitation.
The Court set aside the Authority's decision and remitted the matter to the Authority for reconsideration according to law.