THOMPSON v Minister for Immigration - [2009] FMCA 1210

FEDERAL MAGISTRATES COURT OF AUSTRALIA

THOMPSON & ORS v MINISTER FOR IMMIGRATION

[2009] FMCA 1210

MIGRATION – Whether the applicants were member’s of the primary applicant’s family unit – whether the applicants were members of the primary applicant’s household in circumstances where the applicants lived in Sierra Leone and the primary applicant lived in England – whether the applicants satisfy reg.1.12(e)(ii) of the Migration Regulations 1994.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.66(2)(c); 66(3); 65; pt.8 div.2
Migration Regulations 1994, reg.1.12; 1.12(e)(ii); 175.311

Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S154/2002 (2003) 201 ALR 437

First Applicant:

SONIA THOMPSON

Second Applicant:

ONESIMUS THOMPSON

Third Applicant:

QUINTIN REYNOLD PEACOCK

Fourth Applicant:

ALVANUS FELIX THOMPSON

Fifth Applicant:

MOSES WILLIAMS

Sixth Applicant:

EUSTACE OLU THOMAS

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

SYG 1807 of 2009

Judgment of:

Emmett FM

Hearing date:

17 November 2009

Date of Last Submission:

17 November 2009

Delivered at:

Sydney

Delivered on:

7 December 2009

REPRESENTATION

Solicitors for the Applicant:

Mr M. Jones

Counsel for the Respondent:

Mr D. Godwin

Solicitors for the Respondent:

Ms K. Hooper, DLA Phillips Fox Lawyers

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1807 of 2009

SONIA THOMPSON

First Applicant

ONESIMUS THOMPSON

Second Applicant

QUINTIN REYNOLD PEACOCK

Third Applicant

ALVANUS FELIX THOMPSON

Fourth Applicant

MOSES WILLIAMS

Fifth Applicant

EUSTACE OLU THOMAS

Sixth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of a delegate of the Department of Immigration and Citizenship dated 3 July 2009.
The applicants are all citizens of Sierra Leone and claim to be dependent members of the family unit of Mr Cecil Marke.
On 28 September 2007, Mr Marke lodged an application for a (Class VE, subclass 175) skilled migration visa with the Department of Immigration and Citizenship (“the Department”) under the Act. Mr Marke stated that the purpose of his journey was “skilled migration”. Mr Marke is an accountant in London and also a citizen of Sierra Leone. Mr Marke moved to the United Kingdom in May 1996, where he has resided in London until the present time.
The applicants were included in Mr Marke’s application under Part G “Details of migrating family members”. The applicants were identified as dependents over the age of 18 years. The first named applicant is the niece of Mr Marke, the second and sixth applicants are his half brothers, the third and fifth applicants are his cousins and the fourth applicant is his nephew.
Each of the applicants gave the same residential address in Wellington, Freetown, Sierra Leone. Each of the applicants identified Mr Marke as their main source of financial support. Each of the applicants confirmed that they did not live at the same address as Mr Marke. The first, third,…

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: [2009] FMCA 1210
Decision Date: 7 December 2009

CaseChat Overview and Summary

The case of Thompson v Minister for Immigration was heard in the Federal Magistrates Court of Australia. The applicants, all citizens of Sierra Leone, sought judicial review of a decision made by a delegate of the Department of Immigration and Citizenship to refuse their applications for Class VE, subclass 175 Skilled – Independent visas. The applicants claimed to be dependent members of the family unit of Mr Cecil Marke, who is an accountant in London and also a citizen of Sierra Leone. The applicants were included in Mr Marke’s skilled migration visa application, and they identified Mr Marke as their main source of financial support. However, they did not live at the same address as Mr Marke. The legal issues in this case were whether the applicants were members of Mr Marke’s family unit and whether they were members of his household under regulation 1.12(e)(ii) of the Migration Regulations 1994.

The court considered the applicants' argument that the decision-maker had misinterpreted the meaning of the expression "usually resident in the family head’s household" in Migration Regulation 1.12(e)(ii). The applicants argued that it was possible to have more than one household, even if they resided at different addresses, and that it was open to the decision-maker to find that Mr Marke was the head of the household of which the applicants were members. However, the court found that there was no evidence provided by Mr Marke to the Department as to whether or not Mr Marke was the head of a household of which the applicants were members. The court also found that the decision-maker's finding that the applicants were not usually resident in Mr Marke’s household was a finding of fact that was open to the decision-maker on the evidence and material before him.

The court further found that the decision-maker’s decision was not affected by jurisdictional error. The court dismissed the application with costs. The applicants' argument that the decision-maker had not considered the broader meaning of "household" for the purposes of satisfying regulation 1.12(e)(ii) was rejected, as the court found that there was evidence and material before the decision-maker to conclude that the applicants were not usually resident in Mr Marke’s household, and there was no evidence to suggest otherwise.

Orders