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Lam v MIBP

Lam v MIBP

Case [2013] FCCA 1263 4 October 2013

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Administrative Law

Statutory Interpretation

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FEDERAL CIRCUIT COURT OF AUSTRALIA

LAM v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1263

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a family carer’s visa – whether the Tribunal misconstrued or misinterpreted the Migration Regulations 1994 (Cth), failed to take into account a relevant consideration or made a decision without evidence considered.

Legislation:

Migration Regulations 1994 (Cth)

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Rafiq v Minister for Immigration [2004] FCA 564

SFGB v Minister for Immigration (2003) 77 ALD 402

Applicant:

THI LUNG LAM

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 206 of 2013

Judgment of:

Judge Driver

Hearing date:

3 September 2013

Delivered at:

Sydney

Delivered on:

4 October 2013

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

VietAust Lawyers

Counsel for the Respondents:

Ms R Francois

Solicitors for the Respondents:

DLA Piper

ORDERS

The title of the first respondent be amended to “Minister for Immigration and Border Protection”.
The further amended application filed on 3 September 2013 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 206 of 2013

THI LUNG LAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 2 January 2013. The Tribunal affirmed a decision of the delegate of the Minister not to grant the visa applicants Other Family (Migrant) (Class BO) visas. The following statement of background facts is derived from the submissions of the parties.
On 27 July 2009 Ms Phuong, a citizen of Vietnam who is resident in Vietnam, made an application for a Class BO visa, seeking to satisfy the criteria for subclass 116 as a “carer”[1]. Clause 116.211(1) of Schedule 2, to the Migration Regulations 1994 (Cth) (Regulations), which was a “time of application” criterion, required that:
116.211(1) The applicant claims to be a carer of an Australian relative of the applicant.
[1] court book (CB) 8-45

Clause 116.211, a ‘time of decision’ criterion stated:
116.221 The applicant is a carer of the Australian relative mentioned in clause 116.211.
A “carer” was relevantly defined in Regulations as follows:
1.15AA Carer
(1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:
(a)the applicant is a relative of the resident; and
(b)according to a certificate that meets the requirements of subregulation (2):
(i)     a person (being the resident or a member of the family unit of the resident) has a medical condition; and
(ii)    the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and
(iii)   the impairment has, under the Impairment Tables, 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.

Continue reading Lam v MIBP

Details

AGLC: LAM v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1263
Case: [2013] FCCA 1263
Decision Date: 4 October 2013

CaseChat Overview and Summary

The applicant, Lam, sought judicial review of a decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) to refuse to grant a protection visa. The Administrative Appeals Tribunal (AAT) had affirmed the Minister's decision. The matter came before Judge Driver of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Tribunal had erred in law by failing to adequately consider or give sufficient weight to the applicant's claims of past persecution and well-founded fears of future persecution, particularly in relation to the applicant's alleged membership of a particular social group. The applicant contended that the Tribunal's findings were not supported by the evidence before it and that the Tribunal had misunderstood or misapplied the relevant legal tests for assessing claims of persecution.

Judge Driver found that the Tribunal had indeed erred in law. The Court held that the Tribunal had failed to properly engage with the evidence presented by the applicant regarding the specific nature of the persecution he claimed to have suffered and the reasons for his fear of returning to his country of origin. The Court emphasised that a proper assessment of a protection visa claim requires a detailed and nuanced consideration of the applicant's individual circumstances and the specific risks they face, rather than a generalised approach. The Court concluded that the Tribunal's decision was vitiated by a failure to adequately reason its findings in relation to the applicant's claims.

The Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders