Nguyen v MIMA

Case [1998] FCA 1307


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"

Migration Act 1958 (Cth) ss 476(1)(e), 481(1)(b)

Migration Regulations (Cth) Reg 1.14

Chen v Minister for Immigration (1992) 37 FCR 501 - distinguished

Rahim v Minister for Immigration (1997) 78 FCR 232 - considered

Yuk Shan Cheung v Minister for Immigration (Federal Court of Australia, Einfeld J, 27 October 1997) - cited

Morales v Minister for Immigration (1995) 60 FCR 550 - cited

Ranatora v Minister for Immigration 154 ALR 693 - cited

Wasfi v The Commonwealth of Australia and Another (Federal Court of Australia, Merkel J, 5 June 1998) - considered

Mobil Oil Canada Ltd v Canada-New Foundland Offshore Petroleum Board (1994) 111 DLR (4th) - cited

Santa Sabina College v Minister for Education (1985) 58 ALR 527 - cited

Kathiresan v The Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Gray J, 4 March 1998) - not followed

Kizon v Palmer (1997) 72 FCR 409 - cited

Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 - cited

Re Australian Railways Union and Others; Ex parte Public Transport Corporation (1993) 117 ALR 17 - cited

Northern NSW FM Pty Limited v Australian Broadcasting Tribunal (1990) 26 FCR 39 - cited

Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1 - cited

Vaitaiki v Minister for Immigration 150 ALR 608 - cited

Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 - cited

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:

  1. 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")…

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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.

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

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