MINH QUANG NGUYEN v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS No. VG 724 of 1997 FED No. 1307/98 Number of pages - 11 Immigration (1998) 158 ALR 639
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
MERKEL J
Immigration - Review of decision of Immigration Review Tribunal - Application for Preferential Relative (Migrant) Visa - whether a visa applicant is an 'orphan relative' by reason of his mother being 'permanently incapacitated' from caring for him - whether 'permanently incapacitated' is confined to physical or mental impairment - whether the decision involved an error of law - circumstances in which a court might exercise its discretion not to refer matter back for rehearing - whether Court is to refer matter back to the tribunal or to the individual who made the decision under review
Words And Phrases - "permanently incapacitated" - "person"
MELBOURNE, 23 September 1998 (hearing), 16 October 1998 (decision)
#DATE 16:10:1998
Appearances
Counsel for the Applicant: Mr T Hurley
Solicitor for the Applicant: Barlow & Co
Counsel for the Respondent: Mr W Mosley
Solicitor for the Respondent: Australian Government Solicitors
THE COURT ORDERS THAT:
The decision of the Immigration Review Tribunal made on 18 November 1997 be set aside.
2. The matter be referred back for rehearing before a differently constituted Immigration Review Tribunal.
3. The respondent pay the applicant's costs of the application for review.
MERKEL J
INTRODUCTION
The applicant is an Australian citizen and resident. He has applied to the Court under Pt 8 of the Migration Act 1958 (Cth) ("the Act")…
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
AGLC
Nguyen, Minh Quang v Minister for Immigration & Multicultural Affairs [1998] FCA 1307 ((1998) 158 ALR 639)
Case
[1998] FCA 1307
Decision Date
CaseChat Overview and Summary
The case of Nguyen v Minister for Immigration and Multicultural Affairs involved an Australian citizen and resident, Minh Quang Nguyen, seeking to bring his grandson, Quoc Khoi Nguyen, from Vietnam to Australia under the Preferential Relative (Migrant) visa scheme. The Immigration Review Tribunal (IRT) had affirmed the decision of the Migration Internal Review Office not to grant the visa, finding that the grandson did not meet the definition of an "orphan relative" under reg 1.14 of the Migration Regulations. The primary issue before the Federal Court was whether the IRT erred in law by interpreting the term "permanently incapacitated" in reg 1.14 as confined to physical or mental impairment, and if such an error was material to the decision. The Court found that the IRT had indeed erred in law by adopting an interpretation of "permanently incapacitated" that did not encompass the ordinary meaning of the term, which can include circumstances beyond physical or mental infirmity.
The Court held that the error was material because it affected the IRT's decision. Although the Minister argued that the IRT might have found the mother merely unwilling to care for her son, the Court determined that the IRT's reasons did not clearly support this finding. The Court exercised its discretion under s 481(1) of the Migration Act to set aside the IRT's decision and refer the matter back for rehearing before a differently constituted IRT, noting that remittal would not be futile. The Court also addressed the issue of whether it could refer the matter back to the IRT or only to the individual member who made the decision, concluding that the term "person" in s 481(1)(b) includes a tribunal, allowing for a remittal to a differently constituted tribunal.