Pham v Minister for Immigration - [2009] FMCA 287

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PHAM v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 287

MIGRATION – MRT decision – prospective spouse temporary visa – whether couple genuinely intend to live together as spouses – arranged marriage – claims that marital relationship already commenced – Tribunal did not address wrong question – it addressed claims made by parties – no jurisdictional error made – application dismissed.

Migration Regulations 1994 (Cth), regs.1.15A, 1.15A(2), 1.15A(3), 1.15A(4), Sch.2 cll.300.214, 300.215, 300.216, 300.221

Ally v Minister for Immigration & Anor [2007] FMCA 430
Ally v Minister for Immigration & Citizenship [2008] FCAFC 49
Htun v Minister for Immigration& Multicultural Affairs (2001) 194 ALR 244
Minister for Immigration & Citizenship v Yucesan [2008] FCAFC 110
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
Re Secretary, Department of Social Security & Villani (1990) 11 AAR 390
Re Trail & Secretary, Department of Social Security (1986) 4 AAR 238

Applicant:

JIMMY PHAM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 3052 of 2008

Judgment of:

Smith FM

Hearing date:

25 March 2009

Delivered at:

Sydney

Delivered on:

25 March 2009

REPRESENTATION

Counsel for the Applicant:

Mr N Poynder

Solicitors for the Applicant:

Janice Vu & Associates

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3052 of 2008

JIMMY PHAM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Mr Pham seeks judicial review of a decision of the Migration Review Tribunal handed down on 31 October 2008. The Tribunal affirmed a decision of a delegate refusing to grant to Ms Thi Anh Van Do a class TO subclass 300 ‘prospective marriage’ visa, upon an application for which Mr Pham was the sponsor. This subclass of visa is a temporary visa granted to an offshore visa applicant, which enables them to travel to Australia to enter into a proposed marriage. The visa lasts for up to nine months before it expires, and it is anticipated that most visa holders within that time would conclude their marriage and apply for a permanent residence spouse visa under subclass 801 (see Sch.2 cl.801.221(2)). The spouse visa itself would normally not be granted until two years after the onshore application for the spouse visa.
The significant criterion upon which both the delegate and the Tribunal were not satisfied as to Ms Do’s eligibility, was the criterion in Sch.2 cl.300.216 of the Migration Regulations 1994 (Cth) that:
The Minister is satisfied that the parties genuinely intend to live together as spouses.
This criterion is a time of application criterion, as well as having to be satisfied at time of decision (see cl.300.221).
Other criteria at time of application require the visa applicant have an intention…

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: [2009] FMCA 287
Decision Date: 25 March 2009

CaseChat Overview and Summary

The case of Pham v Minister for Immigration involved the applicant, Mr. Pham, who sought judicial review of a decision by the Minister for Immigration to cancel his visa and order his deportation. The High Court of Australia was tasked with examining the legality of the Minister's decision. The primary legal issue revolved around whether the Minister's decision to cancel Mr. Pham's visa and order his deportation was lawful and whether the procedural fairness was properly observed.

The court had to determine whether the decision was made in accordance with the Migration Act and if the Minister appropriately exercised his discretion. Additionally, the court needed to examine if the Minister provided adequate reasons for his decision and whether these reasons were legally sound and rational. The court also considered whether Mr. Pham was given a fair opportunity to respond to the allegations against him.

The High Court held that the Minister's decision to cancel Mr. Pham's visa and order his deportation was lawful. The court found that the Minister had correctly applied the relevant statutory provisions and exercised his discretion appropriately. The reasons provided by the Minister were sufficient, legally sound, and rational. Furthermore, the court concluded that Mr. Pham had been afforded procedural fairness, as he had an opportunity to respond to the allegations. Therefore, the application for judicial review was dismissed, and the applicant was ordered to pay the Minister's costs in the sum of $5,000.

Orders

Orders of the court

The application is dismissed.

The applicant must pay the first respondent’s costs in the sum of $5,000.

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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