Tran v Minister for Immigration - [2015] FCCA 3395

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRAN v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3395

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision (Tribunal) - Other Family (Migrant)(Class BO) visa (Carer Visa) – whether care could reasonably be provided to the review applicant by the review applicant’s children living in Australia – whether there was an issue as to whether one of the review applicant’s sons medical condition rendered him violent towards others including the review applicant – whether there was an issue that the review applicant had moved out of her home in order to enhance the visa applicant’s prospects of being granted a Carer Visa – whether the Tribunal was bound to give the review applicant notice of these issues – whether the Tribunal gave the review applicant notice of these issues – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.360(1)

Migration Regulations 1994 (Cth), reg.1.15AA(1), 1.15AA(1)(e), 1.15AA(2)

Commissioner for Australian Capital Territory Revenue v Alphaone Pty [1994] FCA 1074; (1994) 49 FCR 576

SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152

Applicant:

THI TY TRAN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1014 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

12 November 2014

Date of Last Submission:

5 November 2014

Delivered at:

Sydney

Delivered on:

18 December 2015

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

My T Nguyen Solicitors

Counsel for the Respondents:

Mr J Smith SC

Solicitors for the Respondents:

DLA Piper

ORDERS

The application is dismissed.
The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1014 of 2014

THI TY TRAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By this application for judicial review, the applicant claims the second respondent (Tribunal), contrary to s.360(1) of the Migration Act 1958 (Cth) (Act), failed to give to the review applicant notice of two matters on which the Tribunal relied for affirming the decision of a delegate of the first respondent (Minister) not to grant the visa applicant and her family an Other Family (Migrant)(Class BO)(subclass 116) visa (Carer Visa).

Background

The applicant (review applicant) is an Australian citizen of Vietnamese origin. She is a widow, and suffers from severe dementia, osteoporosis, and other conditions. Because of her medical condition, the review applicant requires 24 hour high-level care and assistance in her daily living.[1]
[1] CB102
The review applicant’s daughter (visa applicant), who also is a Vietnamese citizen, but, unlike the review applicant, resides in Vietnam, applied for a Carer Visa. She applied on 21 September 2012.[2] To have been entitled to a Carer Visa, the visa applicant had to satisfy the Minister she was a “carer” of…

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.

Continue reading Tran v Minister for Immigration

Details

AGLC: Tran v Minister for Immigration [2015] FCCA 3395
Case: [2015] FCCA 3395
Decision Date: 18 December 2015

CaseChat Overview and Summary

In *Tran v Minister for Immigration*, heard in the Federal Circuit and Family Court of Australia, the applicant sought judicial review of a decision by the Administrative Appeals Tribunal. The dispute concerned whether the Tribunal had adequately notified the applicant of certain "issues" it considered when assessing her visa application, as required by the principles established in *SZBEL*.

The court was required to determine whether specific matters raised by the applicant, particularly concerning the medical condition and behaviour of her son, constituted "issues" for the purposes of the *SZBEL* principles. If these matters were deemed "issues," the court then had to consider whether the Tribunal was obligated to provide the applicant with notice of these issues and, if so, whether such notice was indeed given.

The court reasoned that the Tribunal's obligation to provide notice under *SZBEL* extends to asserted facts that are relevant to the principal facts required for visa eligibility. In this instance, the applicant relied on her son's medical condition and the need for her other children to care for him as reasons why they could not care for her. The court found that the question of whether the son was violent was a relevant fact that bore directly on the ability of the applicant's other children to provide her with care. As this was a fact relevant to the principal facts, it was considered an "issue" for the purposes of *SZBEL*, and the Tribunal was therefore required to give notice of it.

Orders

Orders of the court

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Background

Background to the litigation

Under the SZBEL principles, the Tribunal’s obligation to give notice arises only in relation to “issues”. At the very least, the issues in any application for review before the Tribunal would include asserted facts which, under the relevant criteria, the Tribunal must be satisfied exist before it can be satisfied the relevant criteria for the granting of the visa in question are met (principal facts). In most cases, however, the issues would extend beyond the principal facts; in all but the simplest of cases, the issues would also include asserted facts, the existence or non-existence of which are relevant to the existence or non-existence of the principal facts. There is every reason, at least in most cases, to regard asserted facts that are relevant to the existence or non-existence of the principal facts, to be “issues” for the purposes of the SZBEL principles. That is so because a finding on a fact relevant to the principal facts will or may bear on whether the Tribunal is satisfied that one or more of the principal facts exists or does not exist. In some cases, the issues may include matters that are relevant only to the credibility of the applicant. A corollary of these observations is that not every matter an applicant raises in a case, or which the Tribunal decides or considers, becomes an “issue” for the purposes of the SZBEL principles, only because the matter has been raised, or considered, or decided. A Tribunal’s considering and determining a matter that cannot reasonably be regarded as relevant to whether an applicant satisfies the criteria that apply to the granting of a visa cannot, therefore, be an “issue” that attracts the SZBEL principles. Having set out the relevant principles that are to guide me in determining the applicant’s case, it should be apparent there are three questions I must consider: were the Claimed Issues “issues” for the purposes of the SZBEL principles? If so, was the Tribunal required to give the review applicant notice of those issues? If so, did the Tribunal give the review applicant the requisite notice? The review applicant relied on the medical condition of Son B as a reason for Son A’s and Daughter A’s not being in a position to look after the applicant. The reasons Son A gave for not being able to care for his mother are that he works full time and that he, together with Daughter A, jointly care for Son B;[32] and the reasons Daughter A gave are that she and Son A have to care for Son B who suffers from anxiety, depression, and psychosis, and that Son B has violent outbursts which require control and supervision which cannot be provided by one person alone.[33] [32] CB131[33] CB128 From this material, an issue arose about whether Son B was violent; and it was an issue the review applicant herself raised. Whether Son B was violent was relevant to the claims that Son A and Daughter A could not reasonably take care of the review applicant. Son B’s violent outbursts was something which required constant control and supervision; and because it was Son A and Daughter A who controlled and supervised Son B, it was not reasonable to expect that they also provide the review applicant with the required care.

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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