Le v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LE v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1367

MIGRATION – Categories of visas – family migration – spouses – aged dependant relative – whether de facto relationships included in definition of ‘married’ for Reg 1.03.

Marriage Act1961
Migration Act1958, s.12
Migration Regulations1994, reg.1.03, 1.15A

James v Minister for Immigration & Multicultural Affairs [2002] FCAFC 91; [2002] FCA 383; 118 FCR 493, 68 ALD 96
Li v Minister for Immigration and Citizenship [2007] FCA 1098, (2007) 96 ALD 361 [2007] ALMD 7080

Applicant: THI HONG HANH LE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 357 of 2008

Judgment of: Riethmuller FM

Hearing date: 25 July 2008

Date of Last Submission: 25 July 2008

Delivered at: Melbourne

Delivered on: 6 October 2008

REPRESENTATION

Counsel for the Applicant: Mr Krohn

Solicitors for the Applicant: Koenig & Simons Solicitors

Counsel for the Respondent: Mr Knowles

Solicitors for the Respondent: Clayton Utz

ORDERS

1. A writ of Certiorari issue quashing the decision of the second respondent made on 18 February 2008.

2. A writ of mandamus issue requiring the second respondent to determine the application according to law.

3. The respondent shall pay the costs of the applicant fixed at $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 357 of 2008

THI HONG HANH LE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks orders to judicially review the decision of the Migration Review Tribunal made on 18 February 2008. 

2. The applicant is an Australian citizen seeking to sponsor her ageing father to migrate to Australia from Vietnam.

3. At the Tribunal hearing, the Tribunal made findings of fact to the effect that the visa applicant was in a de facto relationship, and had not formally separated from his de facto spouse, and was therefore outside of the definition of "aged dependent relative" in reg.1.03. The application turns entirely upon the meaning of the relevant definition in reg.1.03.

4. The relevant definition in this case is contained in reg.1.03 for ‘aged dependent relative’ which provides:

   aged dependent relative, in relation to a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means a relative who:

   (a)     has never married, or is widowed, divorced or formally separated from his or her spouse; and

   (b)     has been dependent on that person for a reasonable period, and remains so dependent; and

   (c) is old enough to be granted an age pension under the Social Security Act 1991.

5. It is only with respect to sub-para.(a) of the definition that this case relates.  The applicant says that as the Tribunal had found that her father had never married. He came within the definition whether or not he had separated from his de facto spouse. 

6. Counsel for the Minister argues that the word ‘married’ in the Regulation should be taken to include…