Pham v Minister for Immigration - [2017] FCCA 3272

FEDERAL CIRCUIT COURT OF AUSTRALIA

PHAM v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 3272

Catchwords:
MIGRATION – Migration Review Tribunal – Partner (Residence) (Class BS) (subclass 801) visa – non-judicially determined claim of family violence – whether issues determined by Tribunal were jurisdictional facts – whether errors made by Tribunal warrant remittal when the Tribunal reached the only conclusion that it could have as a matter of law.

Legislation:
IMMI 12/116
Migration Act 1958, s.376
Migration Regulations 1994, regs. 1.22(1), 1.23, 1.24, 1.25, cl. 801.221(6) of Schedule 2
Migration Legislation Amendment Regulation 2012 (No.5), item 4 of Schedule 6

Cases cited:
Minister for Immigration and Border Protection v Hossain [2017[ FCAFC 82
Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd (2011) 194 FCR 11; (2011) 120 ALD 259; (2011) 278 ALR 474; [2011] FCA 233
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; (2001) 62 ALD 225; (2001) 180 ALR 1; (2001) 75 ALJR 1105; (2001) 22(11) Leg Rep 2; [2001] HCA 30
Patel v R (2012) 247 CLR 531; (2012) 290 ALR 189; (2012) 86 ALJR 954; [2012] HCA 29
Shrestha v Minister for Immigration and Border Protection [2017] FCCA 69

Applicant:

NGOC TIEP PHAM

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 1532 of 2015

Judgment of:

Judge Riley

Hearing date:

4 December 2017

Date of last submission:

18 December 2017

Delivered at:

Melbourne

Delivered on:

22 December 2017

REPRESENTATION

Counsel for the applicant:

Adam McBeth

Solicitors for the applicant:

Wimal & Associates

Counsel for the first respondent:

Nick Wood

Solicitors for the first respondent:

DLA Piper Australia

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

DLA Piper Australia

ORDERS

The application filed on 3 July 2015 and amended on 23 August 2017 and further amended on 23 November 2017 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1532 of 2015

NGOC TIEP PHAM

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Migration Review Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Partner (Residence) (Class BS) (subclass 801) visa.
The applicant applied for the visa on the basis of his relationship with his sponsor, Ms Jennifer Le. However, that relationship ended. Under cl.801.221(6) of Schedule 2 of the Migration Regulations 1994 (“the Regulations”), an applicant can continue to meet the requirements for a partner visa, notwithstanding that the relationship had ended, if the applicant has suffered family violence committed by the sponsor.
The applicant claimed that Ms Le had committed family violence against him. The Regulations contain prescriptive methods for establishing that family violence has occurred. Subregulation 1.22(1) of the Regulations provided that:
A reference in…

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: [2017] FCCA 3272
Decision Date: 22 December 2017

CaseChat Overview and Summary

Pham (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, a citizen of Vietnam, claimed to fear persecution in his home country due to his involvement in a political organisation that opposed the Vietnamese government. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that he would not be persecuted if returned to Vietnam. The applicant then sought review of this decision in the Federal Court.

The primary legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the applicant argued that the delegate failed to properly consider and assess the evidence presented regarding his fear of persecution, thereby failing to satisfy the requirements of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The applicant contended that the delegate's adverse credibility findings were not open on the evidence and that the delegate had not adequately assessed the real chance of harm.

Judge Riley found that the delegate had made a jurisdictional error. The Court reasoned that the delegate's assessment of the applicant's credibility was flawed because it relied on an overly narrow interpretation of certain aspects of the applicant's evidence and failed to engage with the entirety of the material before her. The delegate's adverse credibility findings were therefore not open on the evidence, and consequently, the delegate had failed to properly assess the real chance of the applicant suffering harm if returned to Vietnam. The Court applied the principles of administrative law concerning the proper construction of statutory criteria and the requirement for a decision-maker to undertake a comprehensive and balanced assessment of all relevant evidence.

The Court ordered that the decision of the delegate be set aside and remitted to the Minister for reconsideration according to law.

Orders