Nguyen v MIMA

This is an application by the applicant, Minh Quang Nguyen, for review of a decision of the Immigration Review Tribunal ("IRT") to affirm a decision of the Migration Internal Review Office not to grant a Preferential Relative (Migrant) (Class AY) Subclass 104 (Preferential Family) visa to his grandson, Quoc Khoi Nguyen. The IRT found that the applicant's mother was not "permanently incapacitated" for the purposes of the definition of "orphan relative" in reg 1.14 of the Migration Regulations. The issue on the application was whether the IRT erred in its interpretation of reg 1.14. The Court found that the IRT's interpretation of reg 1.14 was erroneous and that the error was material to its decision to affirm the decision not to grant the preferential family visa. The Court also found that it was appropriate to exercise its discretion under s 481(1) of the Migration Act 1958 (Cth) to set aside the decision of the IRT and refer the matter back for rehearing before a differently constituted IRT. The Court also held that the reference to a "person" in s 481(1) of the Act included the IRT, the Refugee Review Tribunal or any other person who had made a decision under the Act or the regulations relating to visas. The Court ordered that the decision of the IRT be set aside and the matter referred back for rehearing before a differently constituted IRT. The Court also ordered that the respondent pay the applicant's costs of the application for review.