Pham v Minister for Immigration - [2013] FMCA 29

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PHAM v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 29

MIGRATION – Other Family (Migrant) (Class BO) visa, subclass 116 (Carer) – whether Tribunal complied with s.359A(1) of the Migration Act 1958 – where letter sent by Tribunal but no response received – deemed receipt – no error – unreasonableness – no error.

Migration Act 1958 (Cth), ss.359A, 359A(1), 359A(2)(a), 379A(5), 379C(5), 424A, 474, 476
Migration Regulations 1994 (C’th), reg. 1.15AA, 1.15AA(1)(f), cl.116.221 of Schedule 2

Minister for Immigration and Multicultural Affairs; Re: Ex parte Applicant S20/2002 (2003) 198 ALR 59
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162
Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163
Tenorio v MIMA [2001] FCA 917
Xiang v MIMIA [2004] FCAFC 64
Xie v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCAFC 172

Applicant:

NHAM VAN PHAM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

BRG 254 of 2012

Judgment of:

Jarrett FM

Hearing date:

24 May 2012

Date of Last Submission:

24 May 2012

Delivered at:

Brisbane

Delivered on:

23 January 2013

REPRESENTATION

Counsel for the Applicant:

Mr Nguyen

Solicitors for the Applicant:

Southside Lawyers

Counsel for the first Respondent:

Mr Bickford

Solicitors for the first Respondent:

Clayton Utz

The second Respondent entered a submitting appearance

ORDERS

The application filed on 19 March, 2012 is dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,240.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 254 of 2012

NHAN VAN PHAM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.476 of the Migration Act 1958 (Cth) for review of a decision of a migration review tribunal to affirm a decision of a delegate of the first respondent not to grant Other Family (Migrant) (Class BO) visas to the primary visa applicant Thi Hong Hiep Pham and her spouse and two children. Ms Pham, her spouse and children all reside in Vietnam.
This application for review is advanced by Mr Nhan Van Pham, who is not one of the visa applicants, but who is the sponsor of the primary visa applicant, Ms Thi Hong Hiep Pham. Ms Pham is Mr Pham’s niece and he seeks that she should be his carer here in Australia.
Mr Pham’s grounds of review are:
a)The Tribunal “fell into jurisdictional error in that it failed to accord the applicant’s procedural fairness by breaching its statutory duty, namely the mandatory obligation imposed on the Tribunal to provide adverse information in writing ‘in all circumstances,’ as per section 359A of the Migration Act 1958 and its application in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA…

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: [2013] FMCA 29
Decision Date: 23 January 2013

CaseChat Overview and Summary

In the matter of Pham v Minister for Immigration, the applicant, Pham, challenged the decision of the Tribunal concerning her application for a subclass 116 (Carer) visa under the Other Family (Migrant) Class BO of the Migration Act 1958. The dispute primarily revolved around whether the Tribunal had complied with section 359A(1) of the Act, particularly regarding the communication sent by the Tribunal and the subsequent deemed receipt of the applicant’s response. The case was heard in the Federal Court of Australia.

The central legal issue for the court was to determine whether the Tribunal had correctly applied the law by deeming the receipt of the applicant's response to a communication, despite no actual response being received. The applicant argued that the deemed receipt was erroneous and unreasonable, thereby impacting the fairness and validity of the decision-making process. The court had to assess whether this deemed receipt constituted an error and, if so, whether it rendered the Tribunal's decision unreasonable.

The Federal Court found that the Tribunal had not erred in deeming receipt of the applicant's response, as there was a legitimate basis for this assumption. The court held that the Tribunal’s action was consistent with the legislative framework, which permits such a deeming in the absence of a response. Additionally, the court concluded that the decision-making process was not rendered unreasonable by this deeming. Consequently, the court dismissed the application and ordered the applicant to pay the Minister's costs of the application.

Orders

Orders of the court

The application filed on 19 March, 2012 is dismissed.

The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,240.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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