Nguyen v Minister for Immigration and Border Protection

The case of Nguyen v Minister for Immigration and Border Protection involves an appeal by the appellant, who applied for a partner visa, against a decision made by the Migration Review Tribunal (the Tribunal) and subsequently upheld by the Federal Circuit Court (the FCC). The central issue in this appeal was whether the Tribunal erred in its failure to consider two statutory declarations, and whether this constituted a jurisdictional error under reg 1.15A(3)(c) of the Migration Regulations 1994 (Cth). This regulation mandates the Tribunal to consider the opinions of friends and acquaintances when determining a partner visa application. The appellant argued that the Tribunal had not properly discharged its obligation to "consider" the relevant matters under regulation 1.15A(3).

The court examined whether the Tribunal had indeed failed to consider the statutory declarations, and if this omission constituted a jurisdictional error. The Tribunal had addressed the appellant's visits to her husband in jail, but it did not explicitly mention the statutory declarations. The court concluded that the Tribunal’s oversight in not considering the statutory declarations was significant and amounted to a failure to properly discharge its obligations under the regulation. This constituted a jurisdictional error because the Tribunal did not follow the mandatory requirement to consider the opinions of friends and acquaintances.

The court allowed the appeal, setting aside the orders made by the FCC and quashing the decision of the Tribunal. It issued a writ of mandamus directing the Administrative Appeals Tribunal to reconsider the appellant’s application for review in accordance with the law. Additionally, the court ordered the Minister to pay the appellant's costs associated with the appeal and the application for judicial review in the FCC.