Thompson v Minister for Immigration - [2009] FMCA 1043

FEDERAL MAGISTRATES COURT OF AUSTRALIA

THOMPSON v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1043

MIGRATION – VISA – Extended Eligibility (Temporary) (Class TK) visa – review of Migration Review Tribunal decision – visa applicant a citizen of China – credibility – whether the Tribunal misconstrued the definitions of “dependent child” and “dependent” in Migration Regulations 1994 (Cth) regs.1.03 and 1.05A – whether the Tribunal failed to ask the correct question – whether the Tribunal misapplied Migration Regulations 1994 regs.1.03 and 1.05A – whether the Tribunal failed to take a relevant consideration into account – no jurisdictional error.

WORDS & PHRASES – “Dependent” – “dependent child”.

Migration Act 1958 (Cth), ss.349, 359, 359A, 476
Migration Regulations 1994 (Cth) Reg.1.03, 1.05A, Schedule 2, Part 445

SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 followed.
Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 200 ALR 359
Huynh v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 576; [2006] FCAFC 122 followed
SZMNF v Minister for Immigration and Citizenship [2008] FMCA 983

Applicant:

BRIAN ROLAND THOMPSON

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1859 of 2009

Judgment of:

Scarlett FM

Hearing date:

24 September 2009

Date of Last Submission:

24 September 2009

Delivered at:

Sydney

Delivered on:

28 October 2009

REPRESENTATION

Counsel for the Applicant:

Mr Gormly

Solicitors for the Applicant:

Austin Haworth & Lexon Legal (Sydney)

Counsel for the Respondents:

Mr Smith

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $6500.00 and I allow 4 months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1859 of 2009

BRIAN ROLAND THOMPSON

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application to review a decision of the Migration Review Tribunal that affirmed the decision not to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) visa.
By an amended application filed on 10^th September 2009 the applicant seeks the following orders:
a)A writ of certiorari quashing the Tribunal decision made on 1^st July 2009;
b)A writ of mandamus ordering that the Applicant’s application for review of the delegate’s decision be heard and determined according to law by the Tribunal differently constituted;[1] and
c)Costs.
[1] The Full Court of the Federal Court has expressed doubt that this Court has the power, when making an order remitting a matter to the Tribunal, to order that the Tribunal be differently constituted (SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107)

Background

The visa applicant is Miss Piao Zhang, a citizen of China, who was born on 16^th January 1985. She was born in Shanghai and currently resides there.[2] She is the daughter of Ms Jin Zhu Gu, who is married to the review applicant, Mr Thompson.
[2] Court…

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 1043
Decision Date: 28 October 2009

CaseChat Overview and Summary

In the Federal Court of Australia, Thompson, a Chinese citizen, sought judicial review of a decision by the Migration Review Tribunal that had found him ineligible for an Extended Eligibility (Temporary) (Class TK) visa. The Tribunal had ruled that Thompson did not meet the criteria for a dependent child under the Migration Regulations 1994, thereby affecting his eligibility for the visa. The core of the dispute was whether the Tribunal had correctly interpreted the definitions of "dependent child" and "dependent" as per the Regulations and whether it had properly considered the relevant factors in its decision-making process.

The legal issues before the Court encompassed several facets of administrative law and statutory interpretation. Specifically, it was necessary to determine if the Tribunal had misconstrued the definitions of "dependent child" and "dependent" in regs.1.03 and 1.05A of the Migration Regulations 1994. The Court also had to examine whether the Tribunal had failed to ask the correct question in its assessment and if it had misapplied the Regulations. Furthermore, the Court considered whether the Tribunal had neglected to take a relevant consideration into account in its decision-making process.

Upon reviewing the matter, the Court found that the Tribunal had correctly interpreted the statutory definitions and had not erred in its application of the Migration Regulations 1994. The Court concluded that the Tribunal had not made a jurisdictional error and had appropriately considered all relevant factors. Consequently, the Court dismissed Thompson's application for judicial review. Additionally, the Court ordered Thompson to pay the costs of the First Respondent, fixed at $6500.00, with a deadline of four months to comply.

Orders

Orders of the court

The Application is dismissed.

The Applicant is to pay the First Respondent’s costs fixed in the sum of $6500.00 and I allow 4 months to pay.

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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