Nguyen v Minister for Immigration and Multicultural Affairs

[1999] FCA 740

FEDERAL COURT OF AUSTRALIA

Nguyen v Minister for Immigration & Multicultural Affairs [1999] FCA 740

MIGRATION – review of Immigration Review Tribunal determination to refuse applicant’s daughter a subclass 100 visa – whether daughter dependent on her mother – no point of principle.

Migration Act 1958 (Cth), s 476

Migration Reform (Transitional Provisions) Regulations
Migration (1993) Regulations

Matter No. N 97 of 1999

KHUONG VAN NGUYEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VON DOUSSA J
SYDNEY
1 JUNE 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 97 OF 1999

BETWEEN:	KHUONG VAN NGUYEN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	VON DOUSSA J
DATE OF ORDER:	1 JUNE 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 97 OF 1999

BETWEEN:	KHUONG VAN NGUYEN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	VON DOUSSA J
DATE:	1 JUNE 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application under s 475 of the Migration Act 1958 (Cth) (the Act) to review a judicially reviewable decision of the Immigration Review Tribunal (IRT) dated 14 January 1999. The decision confirmed a decision of the Migration Internal Review Office (MIRO) in Australia made on 4 May 1998 refusing Ms Thi Thu Hoa Nguyen (the visa applicant) a sub-class 100 visa to enable her to migrate to Australia as a member of the family unit of Mr Khuong Van Nguyen and his wife Mrs Thi Vi Nguyen.

2. This application is brought by Mr Nguyen who was the person who sought the review conducted by MIRO.  In January 1992 Mr Nguyen became a resident of Australia, and a citizen of Australia later that year.  In December 1992 he returned to Vietnam and married Mrs Nguyen.  The marriage occurred on 31 December 1992.  Mr Nguyen, who was born on 12 July 1930, was a widower and Mrs Nguyen, who was born on 1 January 1945, was a widow.  They each had a number of children.

3. On 24 June 1993 Mrs Nguyen lodged a completed application Form 47 seeking to migrate to Australia as the spouse of an Australian citizen. She applied for a Class 100 (Spouse) visa. The conditions for the grant of that visa to Mrs Nguyen, as the “primary person”, were contained in Part 100 of Schedule 2 to the Migration (1993) Regulations. The visa applicant was included in the application as a dependent child. The visa applicant is the daughter of Mrs Nguyen, and was born on 7 May 1973. She was aged 20 at the date of the application. The conditions applicable to the grant of the relevant visa to the visa applicant as a “secondary person” were those at the time contained in Pt 011 of Schedule 3 to the Regulations. Relevantly, Pt 011.32 required that, at the time of the application, the visa applicant be “a member of the family unit” of the primary person applying for a visa of the relevant class, and Pt 011.33 required that at the time of the decision the visa applicant continue to be “a member of the family unit” of the primary person.

4. Decisions on the visa applicant’s application have throughout been made on the footing that the criteria for the grant of the application are those laid down in the Migration (1993) Regulations. This is correct having regard to Reg 23(3) of the Migration Reform (Transitional Provisions) Regulations promulgated in 1994. I note that the criteria have changed somewhat in the meantime, primarily with the advent of the Migration Regulations 1994, but I proceed on the footing that the application falls to be decided under the Migration (1993) Regulations.

5. Regulation 1.8(1)(b) provided that a person is a member of a family unit of another person if the person is a dependent child of the family head or of a spouse of the family head.  The visa applicant sought a visa on the footing that she was “a dependent child”.  Regulation 1.3 defined “dependent” in relation to a person to mean wholly or substantially dependent on another person for financial, psychological or physical support; and defined “dependent child” to mean the natural or adopted child of a person being, in the case of a person who had turned 18, a child who “is dependent on that person”.

6. In November 1993 Mrs Nguyen’s application and that of the visa applicant were considered in Vietnam by a delegate of the Minister.  Both Mrs Nguyen and the visa applicant were interviewed, as was a sibling of the visa applicant who was also included as a secondary person in Mrs Nguyen’s application. 

7. Mrs Nguyen in her Form 47 said she worked as a “seller” selling vegetables since 1963, and she gave particulars of her income and of a number of her children who were dependent upon her.  At the time of the interview, information relating to the family was provided by Mrs Nguyen and the visa applicant.  The visa applicant described herself as “dress-maker” at that time.  The Minister’s delegate considered that the marriage between Mr and Mrs Nguyen was genuine, and Mrs Nguyen and those of the children of the family unit who were included as secondary persons in the application were requested to undergo health criteria checks.  On 4 January 1995 a medical officer of the Commonwealth found that Mrs Nguyen did not satisfy the health criteria.  On 13 January 1995 her application to migrate to Australia was refused for that reason.

8. Mr Nguyen applied to MIRO to review the decision to refuse his wife a Class 100 (Spouse) visa.  Mrs Nguyen was required to undergo further medical tests.  On 21 August 1996 the Director of the National Health Clearances Unit advised that Mrs Nguyen now met the health criteria for permanent residence in Australia subject to her giving a health undertaking and reporting to a chest clinic within four weeks of her arrival in Australia. MIRO remitted the matter for further consideration on 27 August 1996 indicating in part that the question of “dependency of family unit members” might need to be assessed in the circumstances.

9. Mrs Nguyen, the visa applicant, and some other of the children of the family unit were again interviewed by departmental officers in Vietnam.

10. On 16 May 1997 a decision was made in Vietnam by the Minister’s delegate to refuse the visa applicant her application for migration to Australia as a “dependent child” of Mrs Nguyen.  The reasons given by the decision-maker to the visa applicant at that time summarised the information that was available at that time on the question of the dependency of the visa applicant.  The summary was as follows:

    “At interview you stated that you have been working as a dress maker.  From this work you earn about VND 700,000 to VND 800,000 per month.  At interview both you (sic) mother and your father stated that your mother is in fact partially financially dependent on your income.  Your work and your income demonstrates that you are responsible for your own welfare, that you are able to meet your personal living expenses and that you are at least substantially financially independent.  In reaching this conclusion I give weight to the fact that the national average monthly income in Vietnam is about VND 220,000 per month…On this basis, relative to other people in Vietnam, you earn sufficient income to sustain a significant, if not total, financial independence.

    You advanced no claims indicating that you were wholly or substantially dependent on another person for psychologically (sic) or physically (sic) support and your circumstances indicate that you are able to function effectively in the wider society without any apparent or claimed input from your sponsor…

    You were unable to provide evidence that you are wholly or substantially psychologically dependent on your mother.  At interview you did not demonstrate any psychologically (sic) dependency on your mother other than the usual emotional bond that I would expect to see between a mother and daughter…”

11. Whilst the visa applicant’s application was refused, Mrs Nguyen and two of her children were granted a Class 100 visa on 1 August 1997 to enable them to migrate to Australia.  Those two children were found to be dependent children of Mrs Nguyen.

12. On 11 September 1997 Mr Nguyen applied to MIRO to review the decision which was adverse to the visa applicant.  In support of the application Mr Nguyen wrote:

    “Since I go back to Vietnam and married to her mother Vi Thi Nguyen on the 31/12/92 and when I returned to Australia and applied for her family to migrate to Australia, I’d put the whole family in crisis, especially in financial and psychological.  Because I’m just a pensoner with no assets, and my wife have to sold her house in order to get money for all the paperwork and the airfares and to get all the paper work being done in V.N. are very complicated because it passed on so many hands and they all demand money.  After 5 years struggling and waitting my wife now reunion with me in Australia with my son Nguyen Huu Trung and Nguyen Van Tam.  My wife now really missed her because Hoa have to leave school and look for works to help the family during the past 5 years because she’s the older in the family and the only girl so she is responsible for all the home duties such as cooking and washing and she is look after all the family welfare but now she has been out of work since March 97’s.  She’ll be sending over to me the statement of her job which was terminated in March 97 when I receive that statement I’ll log-in to MIRO immediately.  Please grant a visa to our daughter that is our last wish.  Thank you very much for your consideration.”

13. The decision to refuse an application to the visa applicant was affirmed on 4 May 1998 on the ground that her dependency on her mother had not been established.

14. At the hearing before the IRT, the Departmental file containing the information that had been supplied over the years by Mrs Nguyen and the visa applicant was considered.  Mr and Mrs Nguyen both attended and gave sworn evidence with the aid of an interpreter.  Mr Nguyen gave evidence that the visa applicant is not married.  She is not in a relationship, nor is she engaged to be married.  Mr Nguyen said she lived with her married sister in Vietnam and only helps her with housework.  He said that she had been doing that for two years, and before that she had helped Mrs Nguyen with a small business “butcher-shop”, and also worked in a textile sewing business in 1995 and 1996. 

15. Mrs Nguyen confirmed that the visa applicant is a dress-maker but said she had been out of work since 1997.  She confirmed that her daughter had helped her selling vegetables and meat in a small selling business at markets in Vietnam.  The visa applicant had kept her earnings, buying small things for herself and her siblings.  The visa applicant’s income was only sufficient to support herself, and that she did not support her mother prior to her mother’s departure.

16. The IRT referred to the visa applicant’s statement at interview in 1993 that she earned some 700,000 to 800,000 VND a month.  Mrs Nguyen said that she could not remember what was said at the interview.  Mrs Nguyen stressed however that the visa applicant is not now working, and that she resides with her married sister as she has no house or job of her own.

17. Mrs Nguyen said that the visa applicant, whilst she had work in Vietnam, would take her siblings out and spend the money she earned.  Mrs Nguyen said that she supported the applicant then, and still helps her out now.

18. The IRT noted that there were a number of inconsistencies in the evidence and material produced, particularly regarding the visa applicant’s situation.  The IRT said that it found the evidence of Mrs Nguyen at the hearing somewhat confused and at times vague.  On balance the IRT did not consider she was credible regarding her daughter’s situation in Vietnam and observed that her evidence tended to be inconsistent with that recorded at the interview of the parties in Vietnam.  The IRT also noted that there appeared to be confusion in relation to the visa applicant’s situation and her pay and support of the family members in Vietnam, including Mrs Nguyen, before Mrs Nguyen came to Australia in 1997.  The IRT described the explanations given by Mr and Mrs Nguyen regarding the work situation of the visa applicant confusing, implausible and inconsistent.

19. The IRT concluded that it could “not find on balance” that the visa applicant at the time of the application was financially, psychologically or physically dependent on her mother.  Further, whilst noting that Mr and Mrs Nguyen said that the visa applicant had for some time now been financially supported by her family in Australia, there was no evidence produced to indicate that members of the family in Australia had sent money to the visa applicant in Vietnam.  The IRT concluded that the evidence did not show that Mrs Nguyen herself supported the visa applicant financially, and said that Mr Nguyen did not appear to be responsible for her financial support.  The IRT therefore concluded that the visa applicant did not satisfy the requirement of being a “dependent child” of her mother at the time of the application and accordingly did not qualify under the regulations for the visa sought.

20. In its reasons for decision, the IRT quoted at length from Pt 100 of Schedule 2 of the Regulations and set out the relevant provisions of Regs 1.3 and 1.8, but did not refer at all to Pt 011 of Schedule 3. Nevertheless, the IRT addressed itself to the question whether the visa applicant was dependent on her mother, the primary person for the Class 100 (Spouse) visa, for financial, psychological or physical support at the time of the application, that being one of the criteria required to be satisfied by the visa applicant at the time of the application under Pt 011. Although Pt 011 was not referred to in the reasons, the IRT has squarely based its conclusion on a relevant criterion, and has reached that conclusion by applying the appropriate definitions from Regs 1.3 and 1.8.

21. The jurisdiction of this Court on an application under s 475 is limited to the grounds of review set out in s 476(1). The applicant’s application does not address any of those grounds, nor does it attempt to identify an error of law in the IRT’s decision. The applicant says in the application that he is aggrieved because:

    “The Tribunal didn’t understand my daughter’s situation, as she worked only 18 months from 1995 to 1997, and she earned 9000 vt per day, and 45,000 per week, and she earned 180,000 per month for those who are dress maker learner and those who are qualified dress maker earned 15,000 per day.

    Yet my daughter thought that if she declared she earned more, she could enter Australia faster and she declared wrongly (700,000 vt per month).  In fact that sum of money she have had to work for three to four months.

    We are very sad to hear that the Tribunal only listen to migration officer in Vietnam.”

22. Under the heading “grounds of the application” the application reads:

    “When I sponsored my wife and my children, all my children were qualified for visa entry to Australia.  Unfortunately my wife’s health was not good so the entry visas were delayed, and when my wife’s health was good and entry visas were issued, then my daughter’s visa (Thi Thu Hoa Nguyen) was rejected as dependent child.  We felt very sad for that.

    So far my daughter Thi Thu Hoa Nguyen always live under my wife assistance and care.  Without my wife care, she couldn’t survive.

    She only worked for 18 months that 18 months she worked as a dress-maker trainer, her wage was limited.  She still need my wife assistance and care for her clothes and daily expenses.

    The Court under my situation and my daughter position in Vietnam, that entry visa for my daughter, Thi Thu Hoa Nguyen be issued, that she can united with us in Australia.”

23. These statements do not suggest any error of law, and do not give rise to any ground for review under s 476(1). On the contrary, the applicant is seeking to have the merits of the visa applicant’s application reviewed on the merits, and in light of additional factual information which was not disclosed by him to the IRT. On an application for review under s 475, this Court has no jurisdiction either to receive new evidence, or to conduct a review of the merits.

24. The present application is without any legal merit. Unfortunately the applicant has proceeded under a misunderstanding as to the limited role which this Court has on an application for review under s 475 of the Act.

25. As no ground for review has been identified, or appears from the information before the Court, the application must be dismissed.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa.

Associate:

Dated:             1 June 1999

The Applicant appeared in person:
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 June 1999
Date of Judgment:	1 June 1999