Huynh v MIMIA

Case [2006] FCAFC 122


FEDERAL COURT OF AUSTRALIA

Huynh v Minister for Immigration & Multicultural & Indigenous Affairs
[2006] FCAFC 122

MIGRATION – Judicial review – decision of Federal Magistrate – meaning of ‘dependent child’ – whether dependence must be necessary – dependence by choice can be dependent for the purpose of Migration Regulations – decision was affected by jurisdictional error – decision quashed and remitted to tribunal.

Migration Regulations 1994 reg 1.03, reg 1.05A
Migration Act 1958 (Cth)

Minister for Immigration and Multicultural Affairs v Pires (1998) 90 FCR 214 not followed

Xie v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 641 not followed

Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 cited

McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646 applied

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied

Australian Securities and Investments Commission v DB Management Pty Limited (2000) 199 CLR 321 cited

Potts v Niddrie and Benhar Coal Co Ltd [1913] AC 531 cited

Aafjes v Kearney (1976) 180 CLR 199 cited

Green v Daniels (1977) 51 ALJR 463 referred to

Craig v South Australia (1995) 184 CLR 163 applied

CHI CUONG HUYNH AND ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND ANOR
SAD 35 OF 2006

LANDER, RARES AND BESANKO JJ
31 JULY 2006
ADELAIDE


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 35 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

CHI CUONG HUYNH
FIRST APPELLANT

MY VAN HUYNH
SECOND APPELLANT

CHI DUNG HUYNH
THIRD APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGES:

LANDER, RARES AND BESANKO JJ

DATE OF ORDER:

31  JULY 2006

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The appeal is allowed with costs.

2.The orders made by the Federal Magistrates Court on 10 February 2006 be set aside and in lieu thereof it be ordered that:

(a)order in the nature of an order absolute in the first instance for a writ of certiorari to quash the decision of the Migration Review Tribunal made on 7 June 2005;

(b)order in the nature of a writ of mandamus directing the Migration Review Tribunal to hear and determine the applicants’ applications for Partner (Provisional) Class UF) visas according to law;

(c)the respondent pay the applicants’ costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 35 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

CHI CUONG HUYNH
FIRST APPELLANT

MY VAN HUYNH
SECOND APPELLANT

CHI DUNG HUYNH
THIRD APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGES:

LANDER, RARES AND BESANKO JJ

DATE:

31 JULY 2006

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

LANDER AND RARES JJ

  1. The question for decision in this appeal from the Federal Magistrates Court is the proper…

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AGLC
Huynh v MIMA [2006] FCAFC 122
Case
[2006] FCAFC 122
Decision Date

CaseChat Overview and Summary

The appeal in Huynh v MIMIA concerns the interpretation of the terms "dependent child" and "dependent" in the Migration Regulations 1994, as they relate to the eligibility of three Vietnamese nationals for Partner (Provisional) Class UF visas. The appellants, who are the sons of a woman granted a spouse visa, sought to join her as dependent family members but were denied visas by the Minister for Immigration and Multicultural and Indigenous Affairs. The Federal Magistrates Court dismissed their application for judicial review, a decision affirmed by the Migration Review Tribunal. The case was brought to the Federal Court of Australia to determine the proper interpretation of the relevant regulations.

The central legal issue was whether the appellants, who were aged 29, 26, and 23 at the time of their applications, qualified as "dependent children" under regulation 1.03 of the Migration Regulations 1994. The court had to consider whether the definition of "dependent child," which includes children who have not turned 18 or who are incapacitated for work due to loss of bodily or mental functions, could extend to children over 18 who are not incapacitated. Additionally, the court examined whether the appellants were "dependent" within the meaning of regulation 1.05A, which includes those who are wholly or substantially reliant on another for financial support to meet basic needs.

The court found that the appellants' reliance on their mother for financial support did not necessarily make them "dependent children" under the regulations, as the definition explicitly limits the term to those under 18 or incapacitated individuals. The court also concluded that the appellants' age and financial independence disqualified them from being considered dependent children. The court noted that the regulations' structure and language indicated a clear intent to limit the scope of "dependent child" to younger or incapacitated individuals. Consequently, the court ruled that the appellants did not meet the criteria for Partner (Provisional) Class UF visas.

The Federal Court of Australia allowed the appeal, set aside the orders of the Federal Magistrates Court, and quashed the decision of the Migration Review Tribunal. The court issued a writ of mandamus directing the tribunal to reconsider the appellants' applications in accordance with the law. Additionally, the respondent was ordered to pay the appellants' costs. This outcome highlights the strict interpretation of eligibility criteria for dependent family members under Australian immigration law.

Orders

Orders of the court

1. The appeal is allowed with costs.

2. The orders made by the Federal Magistrates Court on 10 February 2006 be set aside and in lieu thereof it be ordered that:

(a) order in the nature of an order absolute in the first instance for a writ of certiorari to quash the decision of the Migration Review Tribunal made on 7 June 2005;

(b) order in the nature of a writ of mandamus directing the Migration Review Tribunal to hear and determine the applicants’ applications for Partner (Provisional) Class UF) visas according to law;

(c) the respondent pay the applicants’ costs.

Background

Background to the litigation

The question for decision in this appeal from the Federal Magistrates Court is the proper construction of the definition of ‘dependent child’ in reg 1.03 and ‘dependent’ in reg 1.05A of the Migration Regulations 1994 (‘the Regulations’).BACKGROUND The mother of each of the appellants, who are aged respectively 29, 26 and 23, was granted a spouse visa together with her youngest son under subclass 309 of the Regulations on 21 December 2003. The mother and her four children are Vietnamese nationals. The mother’s husband, also originally a Vietnamese national, was granted Australian citizenship in 1996 and sponsored his wife’s and her children’s applications for subclass 309 visas. The appellants claimed to be members of the family unit of their mother who was an applicant for a Partner (Provisional) (Class UF) Visa under cl 1220A(3)(d) of Schedule 1 to the Regulations. By cl 1220A(4) of Schedule 1, the provisions of subclass 309 (Spouse (Provisional)) in Schedule 2 was made relevant to that application and by cl 309.311 a criterion which had to be satisfied by each appellant at the time of the decision on his or her application was:‘309.311The applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21.’ The delegate of the first respondent (‘the Minister’) refused to grant the appellants visas on 31 December 2003. They applied for a review of that decision to the tribunal which on 7 June 2005 affirmed the decision not to grant the visas. On 10 February 2006 the Federal Magistrate dismissed the application for judicial review. Relevantly the Regulations provided at 7 June 2005, being the date of the decision of the Migration Review Tribunal (‘the tribunal’):‘1.03 DefinitionsIn these Regulations, unless the contrary intention appears:...dependent has the meaning given by regulation 1.05A.dependent child means the natural or adopted child, or step child, of a person (other than a child who has a spouse or is engaged to be married), being a child who:(a) has not turned 18; or (b) has turned 18 and:(i) is dependent on that person; or(ii)is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.1.05A Dependent(1)Subject to subregulation (2), a person (the first person) is dependent on another person if:(a)at the time when it is necessary to establish whether the first person is dependent on the other person:(i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and(ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or(b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.(2)A person (the first person) is dependent on another person for the purposes of an application for:(d) a Protection (Class XA) visa; or(e) a Refugee and Humanitarian (Migrant) (Class BA)visa; or(ea) a Refugee and Humanitarian (Class XB) visa; or(i) a Temporary Safe Haven (Class UJ) visa;if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.1.12 Member of the family unit(1)..., a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:(a) a spouse of the family head; or(b)a dependent child of the family head or of a spouse of the family head; or...’THE TRIBUNAL REASONING

Evidence

Evidence Before The Court

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Decision

Reasons for decision

LANDER, RARES AND BESANKO JJ

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Ratio Decidendi

Legal Principle Established

Established by: LANDER, RARES AND BESANKO JJ

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