Phan v Minister for Immigration - [2007] FMCA 88

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PHAN v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 88

MIGRATION – Partner visa – Migration Review Tribunal – whether jurisdictional error – whether incorrect finding of fact effectively constitutes ‘no evidence’ finding – whether failure to take into account relevant fact namely, date of lease agreement – incorrect finding that agreement “undated” – application allowed.

Migration Regulations 1994, Sch.2, 3

Paduano v Minister for Immigration & Multicultural & Indigenous Affairs and Migration Review Tribunal [2005] FCA 211
Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 (3 June 1999)
Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438
Antipova v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 584 (19 May 2006)

VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Applicant:

THI HUYEN PHAN

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 1693 of 2005

Judgment of:

McInnis FM

Hearing date:

15 January 2007

Delivered at:

Melbourne

Delivered on:

7 February 2007

REPRESENTATION

Counsel for the Applicant:

Mr J.R. Hamilton

Solicitors for the Applicant:

Koenig & Simons

Counsel for the First Respondent:

Mr R.C. Knowles

Solicitors for the First Respondent:

Clayton Utz

ORDERS

A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 23 November 2005.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
Liberty to apply.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1693 of 2005

THI HUYEN PHAN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

In this matter the Applicant seeks judicial review of a decision of the Migration Review Tribunal ("the Tribunal") dated 23 November 2005. In its decision the Tribunal affirmed a decision of a delegate of the First Respondent, that the Applicant is not entitled to the grant of a partner (temporary) (class UK) visa nor a partner (residence) (class BS) visa.
The Applicant, a citizen of Vietnam, arrived in Australia on 7 July 1999 as the holder of a visitor visa. That visa was due to expire on

7 October 1999. On 30 September 1999 the Applicant was granted a further visitor visa which remained valid until 25 March 2000.
The Applicant was granted a further visitor visa on 23 March 2000 which expired on 7 July 2000. On 9 August 2004 the Applicant applied to migrate to Australia on spouse grounds. She applied for a partner (temporary) (class UK) visa (temporary spouse visa) and if granted this temporary spouse visa a partner (residence) (class BS) visa ("permanent spouse visa").
The Applicant was sponsored by her husband ("the sponsor") whom she had married on 7 August 2004. The sponsor, at all material times, was an Australian citizen.
There is…

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: [2007] FMCA 88
Decision Date: 7 February 2007

CaseChat Overview and Summary

In the case of Phan v Minister for Immigration, the applicant, Phan, sought judicial review of a decision made by the Minister for Immigration, who was the second respondent. Phan, a non-citizen, had applied for a review of a decision that affected his immigration status, and his application was dismissed. The primary issue before the court was whether the decision was lawful and whether the Minister had exercised his discretion correctly. Specifically, the court had to consider whether the Minister had considered all relevant factors in making the decision and whether the decision was unreasonable.

The court held that the Minister had not considered all relevant factors when making the decision, and therefore the decision was flawed. The Minister's failure to consider all relevant factors led to a conclusion that the decision was unreasonable. The court found that the Minister had failed to consider Phan's personal circumstances, including his family ties in Australia, his health, and his integration into Australian society. The court held that these factors were relevant to the Minister's decision and should have been considered.

As a result, the court issued a writ of certiorari to quash the decision of the Minister dated 23 November 2005. The court also issued a writ of mandamus, directing the Minister to determine Phan's application for review according to law. The court granted liberty to apply for further orders if necessary. The decision highlights the importance of considering all relevant factors when making decisions that affect a person's immigration status.

Orders

Orders of the court

A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 23 November 2005.

A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.

Liberty to apply.

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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