Pham v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The applicants, Mr. and Mrs. Pham, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs concerning their applications to add their two children to a Contributory Parent visa application. The core of the dispute revolved around whether the children met the criteria for inclusion in the visa application, specifically whether they were dependents or had been adopted in a manner recognised by migration law. The matter was heard in the Federal Circuit Court of Australia before Judge Egan.

The primary legal issues before the Court were whether the Minister's delegate erred in finding that the children did not satisfy the criteria for the grant of a visa, and consequently, whether the applications to add the children to the parent visa application were valid. The Court was required to determine if the children qualified as dependents under the relevant migration regulations or if they had been adopted in a manner that would permit their inclusion. A further question arose as to whether the delegate, having made an initial decision, was *functus officio* and therefore unable to reconsider the applications, and whether any such error constituted jurisdictional error.

Judge Egan reasoned that the children did not meet the definition of dependents as they were neither financially reliant on the applicants nor were they adopted in accordance with Australian law or the law of the relevant foreign jurisdiction. The Court found that the delegate had correctly applied the law to the facts before them, and therefore, the applications to add the children to the visa application were invalid from the outset. Consequently, the Court concluded that no *functus officio* consideration arose, and no jurisdictional error had been established.

The Amended Application for Review was dismissed, and the applicants were ordered to pay the Respondent’s costs.