Nguyen v Minister for Immigration

[2017] FCCA 273

FEDERAL CIRCUIT COURT OF AUSTRALIA

NGUYEN v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 273

Catchwords:
MIGRATION – Partner (Temporary) (Class UK) visa – whether the Tribunal failed to comply with its statutory duty – no basis to conclude that the Tribunal failed to apply the correct statutory criteria – no evidence identified that the Tribunal failed to consider – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476.

Migration Regulations 1994, reg.1.03, 1.05A, 1.12, cl.820.211, 820.311, 820.321 of Sch 2

Applicant: PHAN PHI LONG NGUYEN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2183 of 2016

Judgment of: Judge Street

Hearing date: 20 February 2017

Date of Last Submission: 20 February 2017

Delivered at: Sydney

Delivered on: 20 February 2017

REPRESENTATION

Solicitors for the Applicant:

Mr R Turner

Turner Coulson Immigration Lawyers

Solicitors for the Respondents:

Ms K Hooper

HWL Ebsworth Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2183 of 2016

PHAN PHI LONG NGUYEN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa. The applicant is a citizen of Vietnam and lodged a valid application for a UK Partner (Temporary) and BS Partner (Residence) visa on 7 June 2013. The visa applicants were the current applicant’s mother is the main applicant and her son, the current applicant in the proceedings. The current applicant was included in the form on the basis that he claimed to be a dependent family member over the age of 18 years.

The Delegate

1. The delegate’s reasons identified the relevant legislation. The delegate identified the meaning of “dependent” as well as the meaning of “family unit” by reference to the Migration Regulations 1994.  The delegate made reference to the Form 47A dated 25 March 2015 and the assertion that the applicant was employed part-time at SpotPress Pty Ltd and the earnings according to the applicant’s payslip.  The delegate noted that this suggests the applicant was receiving more than the current 2015 Centrelink Youth Allowance payment rates maximum fortnightly payment for independent single people over 18 years of age. The delegate referred to the Department policy that a person who is employed would not normally be regarded as dependent for financial support and went on to consider whether the applicant was able to meet his basic needs through his employment. The delegate noted that the applicant claimed to live in an apartment with his mother, the sponsor and would not be able to live without the sponsor’s support. The delegate concluded that a person earning $422.00 per week would be able to meet at least the majority of their own basic needs. 

2. The delegate also referred to the fact that in the Form 47A the applicant alleged that he received financial support of $42,000.00 per year but had attributed $24,000.00 of that to school fees, which are not considered a basic need for the purpose of showing dependency. The delegate referred to the assertion that applicant receives $18,000.00 per year in other financial support for food and other fees. The delegate noted that the applicant had not provided evidence of receiving this money nor how it may have been spent on basic needs.  The delegate noted that the applicant had not detailed who contributes this money to the applicant and shown evidence of that. The delegate noted that the applicant had not provided evidence to demonstrate that the main applicant contributed substantially to the applicant’s basic needs nor that his mother, the main applicant did so prior to the lodging of the application. The delegate found that the requirements of reg.1.05A(1)(a)(i) of the Regulations were not met. The delegate found the secondary applicant has failed to satisfy the requirements of reg.1.05A of the Regulations and was found not to be a dependent on the primary applicant.

3. The delegate observed that the applicant could not be considered a member of the family unit of the primary applicant as defined under reg.1.12 of the Regulations and that accordingly as the applicant did not meet the requirement of the regulations under cl.820.311(a)(i) of the Regulations. The delegate found that the applicant failed to meet the requirements of cl.820.221 of the Regulations and found the applicant did not meet the criteria for a Partner (Residence) (Class BS) (Subclass 801) visa and accordingly refused to grant the same. 

The Tribunal

1. The applicant applied for review on 2 August 2015.  By letter dated 1 June 2016, the applicant was informed that having considered the material before the Tribunal, the Tribunal was unable to make a favourable decision on that information alone. The applicant was invited to attend a hearing on 19 July 2016.  The applicant appeared on that date to give evidence and present arguments and was represented by his migration agent. 

2. The Tribunal identified that the relevant issue in the present case was whether the secondary applicant is either a member of the family unit of the primary applicant for the visa or whether the applicant has been dependent on her for a substantial period immediately prior to the application for the visa.  The Tribunal noted that the applicant came to Australia on 17 March 2005 on a student visa and that he is the son of the sponsor who was granted a subclass 820 visa on 29 July 2015.  The applicant married an Australian citizen on 2 September 2015.  The Tribunal referred to the outcome before the delegate and referred to the requirements for the grant of a visa at the time of application being set out under cl.820.311 of the Regulations. 

3. The Tribunal made express reference to the meaning of “dependent child” identified in reg.1.03 of the Regulations and relevantly noted that that includes a person who has turned 18 and is dependent on that person or is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions. The Tribunal also referred to the fact that at the time of the decision the applicant must be dependent on a member of the family unit of the primary applicant under cl.820.321 of the Regulations. The Tribunal considered the meaning of the requirements of reg.1.05A of the Regulations and noted that this was a case where there was no evidence to suggest the applicant was incapacitated for work. 

4. The Tribunal noted the applicant’s background and that while living in Australia he had been living with his uncle and aunt who are relatives of his mother.  The applicant alleged that his mother paid for his tuition in Australia as well as his board and lodging. The applicant made reference to having been employed between 2012 and 2013 in a printing factory earning about $400.00 a week. The applicant said he paid $150.00 of this to his uncle and aunt for board and lodging.  The applicant alleged that his mother would pay the money for his tuition fees to relatives in Vietnam, as it was alleged to be difficult to send money to Australia.  The applicant also alleged that he borrowed money from his uncle and aunt to pay for tuition fees. 

5. The Tribunal expressly referred to the Form 47A dated 6 June 2013 and the applicant’s assertions that he received financial support of $24,000.00 from his mother and of this he attributed $24,000.00 to school fees. The delegate noted the amount of school fees was not considered a basic need for the purpose of showing dependency. The Tribunal also referred to the reference on the form stating that the applicant received $18,000.00 per year in other financial support for food and other fees. The Tribunal noted that there was no documentary evidence submitted to support the applicant’s claim that he received $18,000.00 in financial support for his food and other fees. The Tribunal observed that there was no documentary evidence submitted as to how much money the applicant received or how this was allocated. 

6. The Tribunal made reference to TAFE fees and that the applicant had given evidence that he was employed in 2013 and paid for board and lodging at his uncle and aunt’s house from the money he earned. The Tribunal observed there is no documentary evidence that the applicant was being financial supported by his mother at that time. The Tribunal found that it was not satisfied that during this time the applicant was wholly or substantially reliant on his mother for food, clothing and shelter or that this reliance was greater than any reliance on any other person or source of support to meet his needs for food, clothing and shelter.

7. The Tribunal found that as the applicant was not a dependent child of his mother, the Tribunal had to consider whether he was a member of the family unit of his mother and made reference to the requirements of reg.1.12 of the Regulations. The Tribunal noted that it found the applicant was not dependent on his mother at the time. The Tribunal found that the applicant was not a member of the family household. The Tribunal was not satisfied at the time of application the applicant was dependent on his mother. The applicant told the tribunal at the time of hearing that he and his wife were living with his mother and stepfather and that they paid $200.00 per week for board and lodging and that he was not studying.

8. The applicant told the Tribunal he was presently working about 10 to 15 hours per week and was being paid $15.00 per hour. The Tribunal noted the applicant had now started another job and that the applicant had said that his mother may buy him clothes on special occasions but otherwise he buys his own. The Tribunal observed that the applicant had given evidence that he was working 10 to 15 hours per week and that he was living with his mother and stepfather and that his wife and him pay $200.00 per week in board and lodging. The Tribunal observed that there was no documentary evidence before the Tribunal that the mother is paying any other costs at present. 

9. The Tribunal found that it was not satisfied at the time of the decision the applicant was wholly or substantially reliant on his mother for financial support to meet his basic needs for food, shelter and clothing or that his reliance on his mother is greater than any reliance on any other person or source of support to meet his basic costs of food, clothing and shelter.

10. The Tribunal found that the applicant who is now married, does not satisfy the requirements for being a member of the family unit of his mother at the time of the decision. The Tribunal found that the requirements of reg.1.5A of the Regulations were not met and found that the requirements of cl.820.321 of the Regulations were not met and that the applicant did not satisfy the criteria for granting a visa. 

Before this Court

1. The ground of the application is as follows:-

   1. The Tribunal failed to carry out its Statutory Duty.

   Particulars

   a. The Tribunal is required to carry out a review of a decision which is the subject of an application to it.

   b. The Tribunal was only prepared to accept and consider documentary evidence rather than all the evidence before it including oral evidence given under affirmation.

   c. By failing to consider all the evidence before it, the Tribunal failed to carry out its statutory duty to review the decision.

2. Ground 2 was formally abandoned by Mr Turner, solicitor for the applicant. 

Consideration

1. In relation to Ground 1, Mr Turner argued that the Tribunal had assumed that there was a capacity to provide documentation and had, in essence determined the application for a want of documentation by the applicant in determining whether or not he was a dependent. It is apparent from the reasoning of the delegate that the want of documentation in relation to whether the applicant was a dependent was a live issue raised by the delegate.

2. Mr Turner took the Court to the Form 47A and the identification of the alleged dependency of the applicant on his mother, as well as the visa application by the mother supporting the applicant’s alleged dependency. The Tribunal expressly referred in its reasons to the Form 47A and on the face of the Tribunal’s reasons took into account the application’s claims and evidence. The Tribunal’s reasons appear to be an orthodox approach to the determination of the review and there is no basis for concluding that the Tribunal failed to apply the correct statutory criteria or misdirected itself by making an assumption as to the necessity for documentary material.

3. It was a matter for the Tribunal to determine the significance of the absence of supporting material. The applicant had been informed in the invitation to attend the hearing that the information provided by the applicant was insufficient. Further, it is apparent from the Tribunal’s reasons that the Tribunal did not refer just to the documentary material in evaluating the applicant’s claims to be a dependent.

4. There is no basis to find that the Tribunal assumed that it would only accept documentary evidence rather than evaluating all the evidence, including the applicant’s oral evidence. There was no evidence identified that the Tribunal had failed to consider. On the face of the Tribunal’s reasons, the Tribunal took into account the whole of the claims and evidence before the tribunal.

5. Although skilfully presented as a failure to comply with its statutory duty, Ground 1 is in substance, an invitation to this Court to engage in an impermissible merits review. There was no failure by the Tribunal on the material before the Court to carry out its statutory duty in the conduct of the review. Ground 1 fails to make out any jurisdictional error. 

Conclusion

1. The application is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 2 March 2017