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Nguyen v MIBP

Nguyen v MIBP

Case [2015] FCCA 3254 8 December 2015

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FEDERAL CIRCUIT COURT OF AUSTRALIA

NGUYEN v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR

[2015] FCCA 3254

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred in finding a number of the relatives of the review applicant could provide care where reg.1.15AA(1)(e)(i) of the Migration Regulations 1994 (Cth) refers to the singular “any other relatives” – whether the Administrative Appeals Tribunal erred in finding that assistance could be provided by a combination of both relatives and “welfare, hospital, nursing or community services in Australia” – whether the expression in reg.1.15AA(1)(e)(ii) of the Migration Regulations 1994 (Cth) is confined to publicly provided services – whether the Administrative Appeals Tribunal erred in finding that “welfare, hospital, nursing or community services in Australia” as referred to in reg.1.15AA(1)(e)(ii) of the Migration Regulations 1994 (Cth) included private services of a commercial nature – whether the Administrative Appeals Tribunal’s conclusions in relation to the ability of relatives to provide care were open to it – whether the Administrative Appeals Tribunal gave proper, genuine and realistic consideration to the requirements of reg.1.15AA(1)(e) of the Migration Regulations 1994 (Cth) – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 338, 431, 474
Migration Regulations 1994 (Cth), regs.1.15AA, 2.01, Schedule 2 – cl.116.221
Acts Interpretation Acts 1901 (Cth), s.23

Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Jajo v Minister for Immigration & Border Protection & Anor [2013] FCCA 1554 El Achkar v Minister for Immigration & Anor [2015] FCCA 2165 Abbott Laboratories v Corbridge Group Pty Ltd [2002] FCAFC 314 Taylor v Owners - Strata Plan No 11564 (2014) 306 ALR 547; [2014] HCA 9 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 SZQMT v Minister for Immigration and Citizenship [2012] FCA 840 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Applicant:	THI BACH TUYET NGUYEN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2486 of 2015

Judgment of:

Judge Emmett

Hearing date:

3 November 2015

Date of Last Submission:

3 November 2015

Delivered at:

Sydney

Delivered on:

8 December 2015

REPRESENTATION

Counsel for the Applicant:

Mr Nick Gangemi

Solicitors for the Applicant:

Pham Lawyers

Counsel for the Respondents:

Mr Tim Reilly

Solicitors for the Respondents:

DLA Piper Australia

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2486 of 2015

THI BACH TUYET NGUYEN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 11 August 2015 and handed down on 12 August 2015 (“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 Nguyen v MIBP

Details

AGLC: Nguyen v MIBP [2015] FCCA 3254
Case: [2015] FCCA 3254
Decision Date: 8 December 2015

CaseChat Overview and Summary

The applicant, Mr. Nguyen, sought judicial review of a decision made by the Minister for Immigration and Border Protection. The Minister had refused to grant Mr. Nguyen a protection visa. The dispute concerned whether the Minister's decision was affected by an error of law, specifically whether the Minister had failed to consider relevant considerations or had taken irrelevant considerations into account when making the decision. The matter came before Emmett J of the Federal Court of Australia.

The primary legal issue before the Court was whether the Minister, in assessing Mr. Nguyen's claim for a protection visa, had adequately considered the risk of him being subjected to torture or inhuman or degrading treatment if returned to Vietnam. This involved determining whether the Minister had properly applied the relevant provisions of the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth), particularly in relation to the assessment of the real chance of harm.

Emmett J found that the Minister's delegate had failed to properly consider the evidence relating to the risk of torture or inhuman or degrading treatment. The delegate had focused on the likelihood of Mr. Nguyen being detained, rather than the conditions he might face if detained. The Court held that the delegate had made an error of law by failing to consider a relevant consideration, namely the potential for mistreatment in detention, which was central to the assessment of whether Mr. Nguyen would be subjected to torture or inhuman or degrading treatment. The legal principle applied was that a decision-maker must consider all relevant considerations and must not take irrelevant considerations into account when exercising a statutory power.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders