Tran v Minister for Immigration - [2016] FCCA 1984

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRAN v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1984

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether Tribunal erred in construing cl.457.223 – whether “and” should be read disjunctively in cl.457.223(a)(ec) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), Sch.2, cl.457.223

Cases cited:

Kumaraperu v Minister for Immigration & Multicultural Affairs (1998) 88 FCR 381

Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280
Minister for Immigration and Border Protection v Eden [2016] FCAFC 28

Applicant:

MINH MAI VI TRAN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2483 of 2014

Judgment of:

Judge Nicholls

Hearing date:

12 July 2016

Date of Last Submission:

12 July 2016

Delivered at:

Sydney

Delivered on:

2 August 2016

REPRESENTATION

Counsel for the Applicant:

Mr P Cutler

Solicitors for the Applicant:

Parish Patience Immigration Lawyers

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

DLA Piper

ORDERS

The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 5 September 2014 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2483 of 2014

MINH MAI VI TRAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 5 September 2014 for review of the decision of the Migration Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”), made on 8 August 2014, which affirmed the decision of the Minister’s delegate to refuse a Temporary Business Entry (Class UC) visa (“the visa”) to Ms Minh Mai Vi Tran (“the applicant”).
In evidence before the Court is the relevant bundle of documents filed by the Minister (“the Court Book” – “CB”).

Background

The applicant applied for the visa on 30 August 2013 on the basis of her proposed employment with her sponsoring employer, “Therapy in the Home Pty Ltd” (CB 8). She was assisted by a registered migration agent.
On 30 September 2013, the Minister’s Department requested that the applicant provide “Evidence of English language ability” (CB 31 to CB 32). By email correspondence on 29 October 2013, the applicant’s representative notified the Department that the applicant had “registered for the IELTS test on 9 November 2013” and asked the Department to “allow her time to complete this test and submit the results” (CB 34).
The delegate refused the grant of the visa on 11 December 2013 (CB 39). The delegate found that the applicant did not meet the English language requirements,…

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.

Keep reading for free

Create a free CaseChat account to read Tran v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FCCA 1984
Decision Date: 2 August 2016

CaseChat Overview and Summary

In the Federal Court of Australia, the applicant, Mr. Tran, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant Mr. Tran a visa.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister, in assessing Mr. Tran's application, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision.

Judge Nicholls found that the delegate had failed to properly consider the applicant's submissions regarding his genuine and temporary intention to remain in Australia, which was a crucial factor in the visa assessment. The Court applied the principles of administrative law, holding that a failure to consider a relevant consideration constitutes a jurisdictional error. Consequently, the Minister's decision was set aside.

Orders