Thompson v MIAC - [2010] FCA 117

FEDERAL COURT OF AUSTRALIA
Thompson v Minister for Immigration & Citizenship [2010] FCA 117

Citation: Thompson v Minister for Immigration & Citizenship [2010] FCA 117

Appeal from: Thompson v Minister for Immigration & Anor [2009] FMCA 1043

Parties: BRIAN ROLAND THOMPSON v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL

File number: NSD 1310 of 2009

Judge: EDMONDS J

Date of judgment: 23 February 2010

Catchwords:
MIGRATION – construction of definitions of ‘dependent’ and ‘dependent child’ in Migration Regulations - whether Tribunal erred in its construction by importing a requirement of need or necessity to the fact of reliance.

Held: No error in the Tribunal’s decision.

Legislation: Migration Regulations 1994 (Cth) regs 103, 105A

Cases cited: Huynh v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 152 FCR 576

Date of hearing: 19 February 2010

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 9

Counsel for the Appellant: Mr J Gormly

Solicitor for the Appellant: Austin Haworth & Lexon Legal (Sydney)

Counsel for the First Respondent: Mr JD Smith

Solicitor for the First Respondent: DLA Phillips Fox

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1310 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
BRIAN ROLAND THOMPSON
Appellant

AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

EDMONDS J

DATE OF ORDER:

23 FEBRUARY 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1310 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
BRIAN ROLAND THOMPSON
Appellant

AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

EDMONDS J

DATE:

23 FEBRUARY 2010

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This is an appeal from the Federal Magistrates Court (Scarlett FM): Thompson v Minister for Immigration & Anor [2009] FMCA 1043, dismissing an application for review of a decision of the second respondent (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) to refuse to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) visa.
ISSUE
The issue on this appeal is whether his Honour was correct in concluding that the Tribunal made no error in its construction of the definitions of ‘dependent’ and ‘dependent child’ in regs 1.05A and 1.03 of the Migration Regulations 1994 (Cth) (‘Regulations’) and in its application of that construction to the facts before it.
FEDERAL MAGISTRATES COURT
His Honour at [45] of his reasons referred to the decision of the Full Court in Huynh v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 152 FCR 576 which, he observed, made it clear that the relevant…

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.

Continue reading Thompson v MIAC

Details

AGLC: Thompson v MIAC [2010] FCA 117
Case: [2010] FCA 117
Decision Date

CaseChat Overview and Summary

This appeal concerns the decision of the Federal Magistrates Court to dismiss an application for review of a decision by the Migration Review Tribunal affirming a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) visa. The central issue in the appeal is whether the Federal Magistrates Court was correct in concluding that the Tribunal did not err in its construction of the definitions of 'dependent' and 'dependent child' in the Migration Regulations 1994, and in its application of those definitions to the facts before it.

The appellant argued that the Tribunal erred by incorporating a requirement of necessity into the meaning of 'dependent', contrary to the decision in Huynh v Minister for Immigration & Multicultural & Indigenous Affairs. The appellant contended that the Tribunal improperly considered the need for the visa applicant to rely on her mother for financial support after finding she had been earning a salary. However, the Tribunal's reasoning did not import a requirement of necessity but rather assessed whether the visa applicant was in fact reliant on her mother for financial support for her basic needs. The Tribunal found that the evidence did not sufficiently establish that the visa applicant was wholly or substantially reliant on her mother for such support.

Justice Edmonds found that the Tribunal's approach was consistent with the decision in Huynh, which clarified that the relevant words in the Regulations do not imply a need or necessity for the parent to provide financial support for the child to be considered a 'dependent child'. Instead, what must be shown is that the child is in fact reliant on the parent for financial support for their basic needs. The Tribunal's conclusion that the visa applicant was not sufficiently reliant on her mother was open based on the evidence before it, and there was no error in the Tribunal's approach or its conclusion.

The appeal was dismissed with costs.

Orders