FEDERAL CIRCUIT COURT OF AUSTRALIA
| NGUYEN v MINISTER FOR IMMIGRATION | [2013] FCCA 1864 |
| Catchwords: MIGRATION – Refusal of offshore application for Student (Temporary) (Class TU) Subclass 573 (Higher Education Sector) Visa – whether delegate failed to take relevant considerations into account – whether delegate failed to comply with s.54 of the Migration Act 1958 (Cth) – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.54, 55, 65, 499, 501 Migration Regulations 1994 (Cth), cl. 573.223 |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 Hong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1308 Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 Minister for Immigration and Citizenship v Anochie & Anor (2012) 209 FCR 497 Minister for Immigration and Citizenship v SZGUR & Anor (2011) 241 CLR 594 Minister for Immigration and Citizenship v Taufahema & Anor (2010) 114 ALD 537 Minister for Immigration and Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicants S134/2002 (2003) 211 CLR 441 SZMGW v Minister for Immigration [2009] FMCA 88 SZRPA v Minister for Immigration & Anor [2012] FMCA 91 SZRPA v Minister for Immigration and Citizenship [2012] FCA 962 |
Article:
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] FedLawRw 19; (1986) 16(4) Federal Law Review 386
| Applicant: | THI THU HUYEN NGUYEN |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2519 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 2 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 22 November 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Solicitor for the Applicant: | Mr A. Pham of Andy Pham Lawyers |
| Solicitor for the Respondent: | Mr O. Jones of Clayton Utz |
ORDERS
The name of the First Respondent be amended to read “Minister for Immigration and Border Protection”.
The Application filed on 2 November 2012 and amended 20 March 2013 be dismissed.
The Applicant pay the First Respondent’s costs and disbursements of and incidental to the Application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2519 of 2012
| THI THU HUYEN NGUYEN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) for judicial review of a decision of a delegate (the “Delegate”) of the Minister for Immigration & Border Protection (the “Minister”). The Delegate refused the applicant, Thi Nguyen, a Student (Temporary) (Class TU) Subclass 573 (Higher Education Sector) visa (the “Visa”) under s.65 of the Migration Act.
In accordance with the Court’s orders made on 29 November 2012, the solicitor for the respondent, the Minister, was required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”. The applicant…
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- AGLC
- NGUYEN v MINISTER FOR IMMIGRATION [2013] FCCA 1864
- Case
- [2013] FCCA 1864
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court were whether the delegate had failed to consider matters required by paragraphs 9(b), 9(c), and 14(a)(i) of Direction 53, and whether this failure constituted a breach of section 54 of the *Migration Act*. Ms Nguyen argued that the word "must" in section 499(2A) imposed an imperative duty on the delegate to consider these specific matters. She further contended that the delegate's assessment demonstrated a disregard for the value of her chosen course of study to her future employment in Vietnam, which was information she had provided in accordance with section 55 of the Act.
The Minister submitted that the delegate had considered all relevant matters, even if not in the precise form suggested by Ms Nguyen. The Court was reminded that Direction 53 is a guide and not a checklist, and compliance is assessed on substance rather than form. Furthermore, the Court's role in judicial review is limited, and it is for the decision-maker, not the court, to determine the weight given to various considerations, absent any statutory indication to the contrary. The Minister also argued that Ms Nguyen could not reframe her case before the court and that, as she was professionally represented, it must be assumed that all claims she wished to make were expressly articulated to the delegate.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The Amended Application pleaded two grounds:1. The delegate failed to take relevant considerations into account.Particulars(a) The matters mentioned as being required to be considered in paragraphs 9(b), 9(c) and 14(a)(i) of Direction 53, made pursuant to s.499 of the migration Act.2. The delegate failed to comply with s.54 of the Migration ActParticulars(a) Failure to consider the reasons why the applicant wanted to study in Australia and why she said that her proposed course of study would assist her in her future employment in Vietnam. The applicant argues that s.499(2A) of the Migration Act makes the matters dealt with in Direction No. 53 a relevant consideration in the Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 sense. That is, in respect of s.499 the word “must” imposes an imperative duty upon the Delegate. With that in mind it is useful to reflect on the matters that the Delegate did not consider. The applicant submits these are as follows:a)The extent of Ms Nguyen’s personal ties to Vietnam, including the fact that she had a brother (CB 65) and her parents, who were clearly wealthy, had been able to support her at home. This was a relevant consideration pursuant to Clause 9(b) of the Direction;b)Whether there were some economic circumstances which may have acted as an incentive not to return, including relative circumstances in Vietnam as compared to Australia. This was required to be considered pursuant to Clause 9(c) of the Direction. Had the delegate considered such circumstances he may have concluded that Ms Nguyen may have been more comfortable in Vietnam, as compared with Australia, given the evidence of her parents’ wealth; andc)The reasons that the previous visa applications were refused, as was required by Clause 14(a)(i) of the Direction. Had the delegate done so he may have discovered that the previous applications were rejected because of lack of information, which Ms Nguyen had sought to rectify. In addition, it is submitted that Ms Nguyen explained in detail as to why the courses that she had chosen to undertake would assist her in her proposed future career in her parents’ business (at CB 151-154). The applicant submits the Delegate was required by s.54 of the Migration Act, read with s.55, to have regard to that information. The applicant contends that it is abundantly clear that the assessment of the value of the course to her future in Vietnam indicates that the Delegate had no regard for it. Indeed, the applicant suggests that the value of a business course with a management component (see CB 153) would appear to be entirely consistent with her proposed future employment and involvement in her parents’ business. It is argued by the applicant, noting the above considerations, the Delegate has therefore failed to take relevant considerations into account. The Minster submits that all relevant considerations were taken into account by the Delegate. In determining the present case, three matters should be borne in mind:a)The Direction explicitly states that it is a “guide” and “decision makers should not use the factors specified in this Direction as a checklist.” As a result, compliance by the Delegate does not depend on the form of words used. Rather, the question is whether, in substance, the matters laid down by the Direction were considered;b)Judicial review for compliance with the Direction should reflect the general law of relevant considerations. In particular, the Court should recall the restriction on its function imposed by the High Court in Peko-Wallsend (supra) per Mason J at 41:The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind…It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.It is argued by the Minister that if the applicant complains that the Delegate did not give due prominence to particular matters her complaint cannot be entertained in this Court.c)As with any proceeding seeking judicial review, the applicant should not be permitted before the Court to refashion their case before the decision-maker. The Delegate cannot err through “an application, never made, which might have been put on another basis”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicants S134/2002 (2003) 211 CLR 441 at [31]. Rather, “[i]t is for the applicant to advance [a claim]. The [Delegate] must then decide whether that claim is made out”: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187] (both dicta are applied in Hong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1308 at [41].This is especially important where, as in this case, the applicant was professionally represented before the decision-maker. In SZRPA v Minister for Immigration & Anor [2012] FMCA 91 the Court held at [43] that where a claimant is professionally represented “it must be assumed that the claims which the claimant wished to make… were the ones expressly articulated by him and his advisers and that none where left to be inferred”; approved on appeal in SZRPA v Minister for Immigration and Citizenship [2012] FCA 962 at [10], [26].