Nguyen v MICMSMA - [2020] FCCA 2705

FEDERAL CIRCUIT COURT OF AUSTRALIA

NGUYEN & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2705

Catchwords:
MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to decision made by the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant a Child (Migrant) (Class AH) visa – whether on the proper construction of reg.1.05A(1)(a)(ii) of the Migration Regulations 1994 (Cth) it was open to the Tribunal to assess as a single source of financial support to a person claiming to be dependent on another person the financial support provided by two family members for the purpose of determining whether the dependent’s reliance on the other person for support was greater than her dependence on any other financial support on which the dependent relied – open to the Tribunal to so assess – whether if not open to the Tribunal to so assess whether its doing so was material to the decision it made – not material – whether the provision of rent free accommodation constitutes “financial support” – it does – application dismissed.

Legislation:

Acts Interpretation Act 1901 (Cth), ss.2(2), 23(b)
Legislation Act 2003 (Cth), ss.13(1)(a), 13(1)(c)

Migration Act 1958 (Cth), ss.5CA, 476

Migration Regulations 1994 (Cth), regs.1.03, 1.04, 1.05A, Schedule 2, cl.101.211(1)

Cases cited:

Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3
Vo v Minister for Home Affairs [2019] FCAFC 108

First Applicant:

THI THU HA NGUYEN

Second Applicant:

PHUONG BAO TRAM NGUYEN

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1833 of 2017

Judgment of:

Judge Manousaridis

Hearing date:

22 April 2020

Date of Last Submission:

22 April 2020

Delivered at:

Sydney

Delivered on:

2 October 2020

REPRESENTATION

Counsel for the Applicant:

Mr N Poynder, by video

Solicitors for the Applicant:

Janice Vu & Associates

Counsel for the First Respondent:

Mr T Reilly, by video

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicants pay the first respondent’s costs set in the amount of $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1833 of 2017

THI THU HA NGUYEN

First Applicant

PHUONG BAO TRAM NGUYEN

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The question that arises in this application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) is whether the second respondent (Tribunal) made a jurisdictional error in affirming the decision of a delegate of the first respondent (Minister) not to grant the second applicant a Child (Migrant) (Class AH) visa (Child visa) because it misconstrued or misapplied the expression “source of support” as that expression appears in reg.1.05A(1)(a)(ii) of the Migration Regulations 1994 (Cth) (Regulations).[1]
[1] As…

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 MICMSMA

Details

AGLC: Nguyen v Minister for Immigration [2020] FCCA 2705
Case: [2020] FCCA 2705
Decision Date: 2 October 2020

CaseChat Overview and Summary

The applicant, Nguyen, sought judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal) which affirmed a decision not to grant a Child (Migrant) (Class AH) visa. The application was brought under section 476 of the *Migration Act 1958* (Cth).

The primary legal issue before the Federal Circuit Court was whether the Tribunal had erred in its interpretation of regulation 1.05A(1)(a)(ii) of the *Migration Regulations 1994* (Cth). Specifically, the court had to determine if it was open to the Tribunal to consider financial support provided by two family members as a single source of financial support when assessing whether a dependent person's reliance on the visa sponsor was greater than their reliance on any other financial support. A secondary issue was whether, if the Tribunal's assessment was not open to it, this error was material to its decision. The court also considered whether the provision of rent-free accommodation constituted "financial support" for the purposes of the regulation.

Judge Manousaridis reasoned that the Tribunal was entitled to assess the financial support from two family members as a single source for the purpose of the regulation. The court found that the provision of rent-free accommodation did indeed constitute financial support. As the Tribunal's assessment was open to it and the provision of rent-free accommodation was correctly characterised as financial support, any potential error in assessing the combined support from two family members was not material to the ultimate decision.

Consequently, the application for judicial review was dismissed.

Orders