Phin v MIAC

In the Federal Magistrates Court, Chomno Phin applied for judicial review of a decision of the Migration Review Tribunal affirming a delegate's decision to refuse her a sub-class 115 visa. The Tribunal had held that her adult son, Raddha Leng, was not dependent on her within the meaning of reg. 1.05A of the Migration Regulations 1994, and therefore she could not satisfy the definition of near relative in reg. 1.15(2)(b)(i) of the Regulations. The primary issue for determination was whether the Tribunal properly addressed the question of Raddha Leng's dependency on his mother. The applicant submitted that the Tribunal misinterpreted and misapplied the definition of "dependent child" and failed to properly consider whether Raddha Leng was, in fact, dependent on his mother. The Tribunal had considered the source of the funds supporting Raddha Leng but did not make the factual finding required by the Regulations as to whether he was dependent on his mother. The Court found that the Tribunal erred in law by not properly addressing the issue of dependency and therefore the decision should be quashed and the matter remitted for rehearing. The Court rejected the alternative arguments advanced by the applicant and held that the Tribunal's decision was not erroneous. The Court ordered that the Tribunal's decision be quashed, the matter be remitted for rehearing, and the Minister pay the applicant's costs.