Tran, Dien Loan v Immigration and Multicultural Affairs

The case of Tran, Dien Loan v Immigration and Multicultural Affairs involves the applicant, Dien Loan Tran, seeking a Preferential Relative (Migrant) Class AY Subclass 104 visa. Despite being divorced, Tran asserts she is still in a de facto relationship with her former husband, which could disqualify her from obtaining the visa. The Immigration Review Tribunal had found that Tran and her former husband maintained contact and a continuous relationship but did not address the mutual commitment requirement. The central legal issue before the court was whether the Tribunal erred in law by not properly considering the mutual commitment aspect of the relationship as stipulated in the relevant regulations. Additionally, the court examined if the Tribunal provided a fair and just mechanism of review or acted according to substantial justice, and if remitting the matter for further consideration would be futile.

The court held that the Tribunal had indeed erred by not inquiring into the mutual commitment to a shared life as husband and wife to the exclusion of all others, a crucial element in determining the genuineness and continuity of the relationship. The court found that the Tribunal's failure to ask the right questions constituted an error of law, as it did not align with the statutory requirements for a de facto relationship. Furthermore, the court ruled that remitting the matter to the Tribunal for further consideration was not futile, as the correct legal issues could still be addressed. Consequently, the decision of the Tribunal was set aside, and the application was remitted to the Tribunal for re-hearing.

The court also ordered that the decision of the Immigration Review Tribunal dated 2 October 1997 be set aside and that the application of Ms Ton Thi My for the grant of a Preferential Relative (Migrant) Class AY Subclass 104 Visa be remitted to the Immigration Review Tribunal, differently constituted, for hearing and determination according to law. Lastly, the respondent was ordered to pay the applicant’s costs of this application.