Nguyen v MICMSMA

In the case of Nguyen v MICMSMA, the appellant, Thi Nguyen, appealed against the decision of the Federal Circuit Court of Australia, which dismissed her application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal had affirmed the decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, refusing the appellant's application for a Subclass 836 (Carer) visa. The appellant was sponsored by her sister, Thi Huyen Nguyen, under cl 836.213 of the Migration Regulations 1994 (Cth). The legal issues in the case were whether the residency criteria prescribed by cl 836.213 required the appellant and the sponsor to be "usually resident" in the same household and whether the primary judge erred in finding that the Tribunal had not fallen into jurisdictional error.

The court found that the primary judge erred in his interpretation of the relevant provisions of the Migration Regulations 1994 (Cth) and the Acts Interpretation Act 1901 (Cth). The court held that the primary judge misunderstood the note to cl 836.2 of the Regulations, which stated that the primary criteria must be satisfied by at least one member of the family unit. The court also found that the primary judge misinterpreted cl 836.213(a), which required the sponsor to be a person who fell within the definition of "member of the family unit" in cl 1.12 of the Regulations. Additionally, the court held that the primary judge misapplied the meaning of "usually resident" by setting the bar too high as to what amounts to "usually resident" in the context of a carer visa.

As a result of the errors identified by the court, the appeal was allowed. The orders made by the Federal Circuit Court of Australia on 21 November 2019 were set aside, and the appellant's application was remitted to the Federal Circuit Court of Australia to be heard and determined according to law. The first respondent was ordered to pay the appellant's costs of and incidental to this appeal to be taxed failing agreement.