Moon v Minister for Immigration & Multicultural Affairs - [1998] FCA 1762

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 915 of 1998

BETWEEN:

JAE-WOONG MOON
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

THE HON JUSTICE MARCUS EINFELD AO

DATE:

15 DECEMBER 1998

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This matter is an appeal from a decision of the Immigration Review Tribunal given on 4 August 1998. It is an interesting case which raises some quite important issues and not a little difficulty. However, as I have formed a clear view about the result of the case, I will give brief reasons now and if necessary will expand on them later.

The determination of the Tribunal sets out the principal facts, and others arise in the course of the documents filed by the respondent in the preparation of this case for hearing. As a result, it is not necessary that I state them in any detail. The applicant, a Korean citizen, is now 26 years old. His father has been in Australia since 1984 and obtained permanent residence in 1986. It is not immediately clear to me whether he is now an Australian citizen, but when he left Korea to come and live in Australia, he left his wife and their two children, including the present applicant, behind in Korea. It appears that the applicant’s father worked in Australia at all relevant times since it became legal for him to do so.

The applicant finished high school in Korea in about February 1992 and thereafter worked part-time at a fast food outlet and full time for a clothing business for a period of about six months. He then undertook compulsory military service from about August 1992 to about October 1994. It appears that he undertook part-time work between the end of school and the commencement of his conscription into the Army because the amount of money paid to conscripts is too small for survival and he wanted to save up a little money.

The evidence established, at any rate to the satisfaction of the Tribunal, that in the eight years between the time the applicant's father left Korea and the time the applicant left school he and his sister were supported by their mother who was working in Korea. The applicant came to Australia soon after the end of his military service. His mother came here apparently at the beginning of or early in his military service.

When the applicant arrived in Australia, he resided with his parents and undertook a course to learn English. He returned to Korea at the end of September 1995 and then returned to Australia with his mother in April 1996. It seems that at all relevant times the nature of the visa given to the applicant prevented him from engaging in work or substantial work. At various stages he did have some work rights as a student.

In July 1996, the mother applied for permanent residence in Australia as the spouse of the applicant's father, including in her application 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.

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Details

Case: [1998] FCA 1762
Decision Date: 15 DECEMBER 1998

CaseChat Overview and Summary

The case of Moon v Minister for Immigration and Multicultural Affairs involved a Korean citizen, Jae-Woong Moon, who sought to appeal a decision made by the Immigration Review Tribunal. The Tribunal had ruled that Moon was not a dependant of his mother, thereby denying his application for permanent residency in Australia. This ruling was based on the grounds that Moon was not wholly or substantially dependant on his mother for financial, psychological, or physical support as defined in regulation 1.03 of the Migration Act.

The primary legal issue before the court was whether the Tribunal had erred in law when it determined that Moon was not a dependant of his mother. The court had to consider if the Tribunal had misconceived the meaning of dependency as set out in the regulation and whether it had misapplied the facts before it. The court also needed to determine if there was a reliance or need for support, as argued by the Minister.

The court found that the Tribunal had indeed erred in law. Firstly, there was no evidence to support the finding that Moon was financially independent. Secondly, the court ruled that it was inappropriate to construe the regulatory definition in a way that would include a "but for" concept, as proposed by the Minister. The court concluded that Moon was wholly dependant on his parents for financial support, and the Tribunal's decision was based on an incorrect interpretation of the definition of dependency. Additionally, the court noted that the Tribunal had failed to provide reasons for its finding that Moon was not psychologically dependant on his mother, which was another error of law.

In light of these errors, the court ordered that the decision of the Tribunal be set aside and the case be remitted for a rehearing by a differently constituted Tribunal. The respondent was ordered to pay Moon's costs of the application. The Minister or his advisers were advised to reconsider the matter prior to any rehearing.

Orders