Lam v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LAM v MINISTER FOR IMMIGRATION [2004] FMCA 121

MIGRATION – Application for review of a decision of the Migration Review Tribunal affirming a decision not to grant a protection visa – whether there was a failure on the part of the Tribunal to properly consider the mandatory considerations under Regulation 1.15A(3) of the Migration Regulations 1994 – whether the Tribunal failed to avert to any matters regarding the household and nature of the parties relationship during times when the parties were together – whether the Tribunal failed to properly apply Regulation 1.15A(5) – whether the Tribunal failed to independently assess the matters under Regulation 1.15A – whether the Tribunal failed to give sufficient weight to photographic evidence – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), s.474
Migration Regulations 1994, Regs 1.15, 1.15A, 1.15A(d), 1.15A(3), 1.15A(5)
Federal Court Rules
Federal Magistrates Court Rules

re Minister for Immigration & Multicultural Affairs; ex parte Holland (2001) 185 ALR 504
Nassouh v Minister forImmigration and Multicultural Affairs (2000) FCA 788
NAAV v Minister for Immigration & Multicultural Affairs (2002) FCFCA 228

Applicant: THI KIM HONG HANH LAM

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MZ683 of 2003

Delivered on: 17 June 2004

Delivered at: Melbourne

Hearing date: 18 February 2004

Judgment of: Bryant CFM

REPRESENTATION

Counsel for the Applicant: Mr Belbruno

Solicitors for the Applicant: Joseph Belbruno

Counsel for the Respondent: Ms Macdonnell

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. In accordance with my reasons, I order that the Application be dismissed.

2. The Applicant pay the Respondent’s costs in default of agreement to be taxed pursuant to Order 62 of the Federal Court Rules having regard to Schedule 1 of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ683 of 2003

THI KIM HONG HANH LAM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant was born in Vietnam and has been an Australian citizen since 10 June 1998.  She came to Australia with her mother under the sponsorship of her father and arrived in Australia on 20 April 1995. 

2. On 15 July 2000 Hung Lam Le ("the visa applicant") applied for a class UF partner provisional visa ("the visa") on the basis that he was the spouse of the applicant.

3. On 13 December 2001 a delegate of the respondent refused the grant of the visa.  On 30 January 2002 the applicant lodged an application with the Migration Review Tribunal ("the Tribunal") for a review of the decision to refuse the visa and that decision was affirmed by the Tribunal on 28 February 2003.  On 24 March 2003 the applicant applied to the Federal Court of Australia for a review of the decision of the Tribunal made on 29 November 2002.  The matter was transferred to the Federal Magistrates Court by order of Marshall J on 26 June 2003.

Relevant legislation

1. The Tribunal found that the applicant…