Pham v Minister for Immigration - [2013] FMCA 130

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PHAM v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 130

MIGRATION – Breach of statutory duty – procedural fairness – failure to comply with s.359AA – failure to comply with s.359A – illogical or unreasonable decision.

Migration Act 1958 (Cth), ss.359AA, 359A

Minister for Aboriginal Affairs v Peko – Wallsend Ltd (1986) 162 CLR 24.
Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123.
WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276; [2002] FCAFC 266.

Applicant:

PHOUNG UYEN PHAM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

BRG 215 of 2012

Judgment of:

Burnett FM

Hearing date:

5 June 2012

Date of Last Submission:

5 June 2012

Delivered at:

Brisbane

Delivered on:

27 February 2013

REPRESENTATION

Counsel for the Applicant:

Mr S Nguyen

Solicitors for the Applicant:

Southside Lawyers

Counsel for the Respondents:

Solicitors for the Respondents:

Clayton Utz

ORDERS

That the application filed on 5 March 2012 is dismissed.
That in default of application for any other orders, the applicant pay the respondent’s costs fixed in the sum of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 215 of 2012

PHOUNG UYEN PHAM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is the holder of a Partner (Temporary) Visa (Class UK) issued 28 December 2005. She sought the issue of a permanent visa being a Partner (Residence) Visa (Class BS). Generally for the grant of the permanent visa the visa applicant must demonstrate an ongoing genuine relationship of two years duration between that person and the sponsoring party.
Other criteria are also required to be established. However for the purpose of this application those matters are not relevant.
Here the circumstances of the applicant and her sponsor gave rise to suspicion. She was aged approximately 37 and the male sponsor was aged 28. They were both of Vietnamese ethnicity. In the course of considering the permanent visa application a site visit at their purported residence was conducted by a Departmental officer. The situation presented at the site visit indicated insufficient evidence of an ongoing relationship between the applicant and the sponsor resulting in the application being refused.
The applicant sought a review of the delegate’s decision. Upon review the Migration Review Tribunal affirmed the delegate’s decision not to grant the applicant a Partner (Residence) Visa (Class BS).

Grounds of Application

In her application for judicial review the applicant contended that the Tribunal fell into jurisdictional error because:
“1. The Tribunal failed to accord the applicant’s (sic) procedural fairness by breaching its statutory duty, namely s.359AA of the Migration Act 1958;
2. The Tribunal failed to accord the applicant’s (sic)…

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.

Continue reading Pham v Minister for Immigration

Details

AGLC: Pham v Minister for Immigration [2013] FMCA 130
Case: [2013] FMCA 130
Decision Date

CaseChat Overview and Summary

In the Federal Magistrates Court, Phoung Uyen Pham sought judicial review of a decision by the Migration Review Tribunal affirming the decision of a delegate to refuse her application for a permanent visa. The Tribunal's decision was based on the conclusion that Pham and her sponsor did not have a genuine relationship. Pham argued that the Tribunal failed to comply with s.359AA and s.359A of the Migration Act 1958 by not ensuring she understood the information on which the Tribunal was relying and inviting her to comment on it. She also contended that the Tribunal's conclusion that there was a lack of mutual commitment between her and her sponsor was unreasonable and illogical. Federal Magistrate Burnett found that the Tribunal did comply with s.359AA and s.359A by giving Pham particulars of information that the Tribunal considered would be the reason for affirming the decision under review, and inviting her to comment on it. The Tribunal's conclusion that there was a lack of mutual commitment between Pham and her sponsor was logically open on the evidence, taking into account all the circumstances. The application for judicial review was dismissed, and Pham was ordered to pay the respondents' costs in the sum of $6,471.00.

Orders