Tran v Minister for Immigration - [2016] FCCA 2723

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRAN & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2723

Catchwords:
MIGRATION – Spouse visa – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Tribunal’s decision affected by jurisdictional error by reason that it failed to consider mandatory matters – remittal.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.5F, 474

Migration Regulations 1994, reg.1.15A, cl.801.221 of sch.2

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Islam v Cash (2015) 148 ALD 132

First Applicant:

STEFFANY TRAN

Second Applicant:

DINH TAN VU

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1550 of 2014

Judgment of:

Judge Cameron

Hearing date:

7 September 2016

Date of Last Submission:

7 September 2016

Delivered at:

Sydney

Delivered on:

7 September 2016

REPRESENTATION

Counsel for the Applicants:

Mr N. Poynder

Solicitors for the Applicants:

Selective Lawyers

Solicitors for the Respondents:

Mr A. Keevers of Sparke Helmore

ORDERS

Steffany Tran be removed as a party to the proceeding.
The Administrative Appeals Tribunal replace the Migration Review Tribunal as second respondent in the proceeding.
A writ of certiorari issue bringing into this Court to be quashed the decision of the Migration Review Tribunal dated 6 May 2014.
A writ of mandamus issue directing the Administrative Appeals Tribunal, as successor of the Migration Review Tribunal, to determine according to law the second applicant’s application made to the Migration Review Tribunal on 12 September 2012.
The first respondent pay the second applicant’s costs of the proceeding fixed in the amount of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1550 of 2014

STEFFANY TRAN

First Applicant

DINH TAN VU

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The second applicant, Mr Vu, is a citizen of Vietnam who arrived in Australia on 7 January 2008 as the holder of student visa which was due to expire on 31 August 2010. On 15 July 2010 Mr Vu applied for a combined Partner (Temporary) (Class UK) subclass 820 and Partner (Residence) (Class BS) subclass 801 visa. Mr Vu’s application was sponsored by his wife, Steffany Tran, who is an Australian citizen. On 3 September 2012 a delegate of the first respondent (“Minister”) refused Mr Vu’s application for a subclass 801 visa on the basis that he did not satisfy cl.801.221 of sch.2 to the Migration Regulations 1994 (“Regulations”) because he and his sponsor did not meet the definition of “spouse” found in s.5F of the Migration Act 1958 (“Act”). Mr Vu then applied to the Migration Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of the delegate’s decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.
At the commencement of the hearing of this…

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: [2016] FCCA 2723
Decision Date: 7 September 2016

CaseChat Overview and Summary

In *Tran v Minister for Immigration*, the applicant sought judicial review of a decision by the Migration Review Tribunal (the Tribunal) which affirmed the refusal of her application for a spouse visa. The applicant contended that the Tribunal's decision was affected by jurisdictional error.

The primary legal issue before the Federal Court was whether the Tribunal had failed to consider mandatory matters required by the *Migration Act 1958* (Cth) and its associated regulations when assessing the applicant's eligibility for a spouse visa. Specifically, the applicant argued that the Tribunal overlooked crucial evidence and failed to adequately address certain criteria relevant to the genuineness and maintenance of the spousal relationship.

Justice Cameron found that the Tribunal had indeed committed jurisdictional error by failing to properly consider the mandatory matters prescribed by the legislation. The Court reasoned that the Tribunal's decision was vitiated by its inadequate engagement with the evidence presented by the applicant concerning the nature and duration of her relationship with her sponsor. This failure meant the Tribunal did not undertake the comprehensive assessment required by law. Consequently, the Court ordered that the Tribunal's decision be set aside and remitted to the Tribunal for redetermination according to law.

Orders