Phan v Minister for Immigration - [2016] FCCA 522

FEDERAL CIRCUIT COURT OF AUSTRALIA

PHAN v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 522

Catchwords:
MIGRATION – Judicial review – partner visa – Tribunal found applicant did not comply with s.5F and reg.1.15A – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), s.5F

Migration Regulations 1994 (Cth), r.1.15A

Kumar v Minister for Immigration & Anor [2015] FCCA 3161
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
SZIAI [2009] HCA 39

Applicant:

NGOC THO PHAN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1297 of 2015

Judgment of:

Judge Harland

Hearing date:

2 March 2016

Date of Last Submission:

2 March 2016

Delivered at:

Melbourne

Delivered on:

11 March 2016

REPRESENTATION

The Applicant:

Appeared in person

Counsel for the Respondents:

Ms Gangemi

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application for judicial review filed on 9 June 2015 is dismissed.
The applicant is to pay the first respondent’s costs of the proceeding fixed in the sum of $4,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1297 of 2015

NGOC THO PHAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of the Tribunal’s decision dated 11 May 2015, which affirmed the Delegate’s decision to refuse the applicant’s application for a Partner (Residence) (Class BS) visa. The applicant appeared unrepresented this morning and had the assistance of a Vietnamese interpreter.
The applicant’s application for judicial review filed on 9 June 2015, sets out the grounds for review:
1. The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction;
Particulars:
a. the tribunal has erred in its conclusion that the applicant and sponsor do not meet the requirements of s.5F(2)(b) and (c) and that it does not meet the criterion contained in cl.801.221(2)(c) of a subclass 801 visa.
b. the tribunal when considering the financial and social aspects of the parties relationship and the nature of their commitment has taken irrelevant factors into account and not taken into account relevant factors.
Her application does not give any particulars which is not uncommon when applicants do not have the assistance of a lawyer. After explaining the nature of the proceedings today and the differences between these proceedings and the proceedings before the Tribunal, I invited the applicant to expand on her complaints about the Tribunal decision. The issues that the applicant raised and, again, this is not uncommon, really went to the issue of merit. I acknowledge that it is difficult for applicants without the benefit of legal assistance to navigate through this very technical area of law.
The applicant complained about the Tribunal finding that her relationship was not genuine because of their lack of use of their joint bank account. She sought to give additional evidence as to the reasons why the applicant and her spouse do not use their…

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.

Keep reading for free

Create a free CaseChat account to read Phan v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FCCA 522
Decision Date: 11 March 2016

CaseChat Overview and Summary

Phan (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who was of Vietnamese nationality, claimed to have a well-founded fear of persecution in Vietnam due to his alleged involvement in a criminal organisation and his subsequent defection from it. The Minister had refused the protection visa application on the grounds that the applicant did not meet the criteria for a protection visa under the *Migration Act 1958* (Cth).

The primary legal issue before the Federal Court was whether the Minister's decision was affected by jurisdictional error. Specifically, the court was required to determine if the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicant's claims, thereby vitiating the decision-making process. This involved examining whether the delegate had properly assessed the applicant's credibility and the objective evidence supporting his claims of persecution.

Judge Harland found that the delegate had failed to adequately consider crucial aspects of the applicant's evidence, particularly concerning his alleged involvement with a criminal organisation and the reasons for his defection. The delegate's assessment was found to be superficial and did not engage with the substance of the applicant's narrative or the potential risks he faced. Consequently, the court concluded that the decision was affected by jurisdictional error. The application for judicial review was therefore granted, and the matter was remitted to the Minister for redetermination according to law.

Orders