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Nguyen v Minister for Immigration

Nguyen v Minister for Immigration

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Case Copied 12 February 2021 55 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

NGUYEN v MINISTER FOR IMMIGRATION & ANOR

[2021] FCCA 212

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Partner (Residence) (Class BS) (Subclass 801) visa – whether findings made by the Tribunal were unsupported by evidence – whether the Tribunal decision was seriously lacking in foundation, rationality, and logical coherence, in a way that was legally unreasonable – whether the Tribunal failed to comply with its obligation under
s 359A of the Migration Act 1958 (Cth) to give the applicant clear particulars of information that the Tribunal considered would be the reason, or a part of the reason for affirming the delegate’s decision – whether the Tribunal misconstrued the meaning of the term “spouse” and in so doing, misapplied s 5F of the Migration Act 1958 (Cth) and r 1.15A of the Migration Regulations 1994 (Cth) – legal unreasonableness – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 359AA,

Migration Regulations 1994 (Cth), cl.801.221(6), scl.2, r, 1.15A(3)

Cases cited:

Abebe v Commonwealth of Australia (1991) 197 CLR 510

AEX15 v Minister for Immigration and Border Protection [2017] FCA 821

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133

CBY15 V Minister for Immigration [2020] FCA 878

DAO16 v Minister for Immigration (2018) 258 FCR 175

Minister for Immigration and Citizenship v Li (2013) 297 ALR 225

Minister for Immigration and Citizenship v SZNGP [2010] FCAFC 51

SAAP v Minister for Immigration (2005) 228 CLR 204

SZNKO v Minister for Immigration and Citizenship. [2010] FCA 297

Applicant:

THI KIM LEIN NGUYEN

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2058 of 2019

Judgment of:

Judge Humphreys

Hearing date:

27 January 2021

Date of Last Submission:

27 January 2021

Delivered at:

Parramatta

Delivered on:

12 February 2021

REPRESENTATION

Counsel for the Applicant:

Mr Poynder

Solicitors for the Applicant:

Vinh Duong & Associates

Counsel for the Respondents:

Mr Johnson

Solicitors for the Respondents:

Hwl Ebsworth Lawyers

ORDERS

The application is dismissed.
The applicant to pay the first respondent’s costs as agreed or assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 2058 of 2019

THI KIM LEIN NGUYEN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Vietnam. The applicant first arrived in Australia as the holder of a Student visa.
On 7 August 2012, the applicant applied for a Partner Class BS (Subclass 801) visa on the basis of her relationship with her sponsor, Mr Nguyen. On 6 February 2018, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant her visa on the basis that the applicant was never in a genuine and continuing relationship with her sponsor and was therefore never the spouse of the sponsor as defined in s 5F…

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

Case: [2021] FCCA 212
Decision Date: 12 February 2021

CaseChat Overview and Summary

This matter concerned an application by Ms. Nguyen for judicial review of a decision made by the Administrative Appeals Tribunal. The Tribunal had affirmed a delegate's decision to refuse Ms. Nguyen a Partner (Residence) (Class BS) (Subclass 801) visa. The core of the dispute revolved around whether the Tribunal's findings were adequately supported by evidence and whether its decision exhibited a lack of foundation, rationality, or logical coherence, rendering it legally unreasonable.

The central legal issues before the Court were whether the Tribunal had failed to comply with its obligation under s 359A of the *Migration Act 1958* (Cth) to provide Ms. Nguyen with clear particulars of information that might lead to the affirmation of the delegate's decision. Additionally, the Court was required to determine if the Tribunal had misconstrued the meaning of "spouse" as defined by s 5F of the *Migration Act* and r 1.15A of the *Migration Regulations 1994* (Cth), and if this misconstruction constituted a jurisdictional error.

Judge Humphreys found that no jurisdictional error had been made out. The Court concluded that the Tribunal's findings were not unsupported by evidence to the extent required to establish legal unreasonableness. Furthermore, the Court determined that the Tribunal had not failed in its obligations under s 359A, nor had it misconstrued the relevant legislative provisions concerning the definition of "spouse." Consequently, the application was dismissed.

Orders

Orders of the court

ORDERS

1. The application is dismissed.

2. The applicant to pay the first respondent’s costs as agreed or assessed.

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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