Truong v Minister for Immigration - [2018] FCCA 497

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRUONG v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 497

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Partner (Residence) (Class BS) (subclass 801) visa – whether the applicant raised claims under reg.1.15A(3)(d)(iii) of the Migration Regulations 1994 – whether the Tribunal failed to consider those claims – whether the Tribunal complied with the requirements of the decision of the Full Court of the Federal Court in He v Minister for Immigration and Border Protection [2017] FCAFC 206.

Legislation:
Migration Act 1958 ss.5F
Migration Regulations 1994 reg.1.15A

Cases cited:

He v Minister for Immigration and Border Protection [2017] FCAFC 206

Applicant:

VAN PHUONG TRUONG

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 2867 of 2015

Judgment of:

Judge Riley

Hearing date:

6 February 2018

Date of last submission:

8 February 2018

Delivered at:

Melbourne

Delivered on:

2 March 2018

REPRESENTATION

Counsel for the applicant:

Angel Aleksov

Solicitors for the applicant:

Victoria Immigration Lawyers

Counsel for the first respondent:

Liam Brown

Solicitors for the first respondent:

Sparke Helmore Lawyers

Advocate for the second respondent:

No appearance

Solicitors for the second respondent:

Sparke Helmore Lawyers

ORDERS

The decision of the Administrative Appeals Tribunal made on 1 December 2015 in matter number 1418339 be set aside.
The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2867 of 2015

VAN PHUONG TRUONG

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Partner (Residence) (Class BS) (subclass 801) visa. To be eligible for a partner visa, the applicant needed to be the spouse of his sponsor at the time of decision. The Tribunal was not satisfied that the applicant and his sponsor were in a genuine and continuing spousal relationship at the time of decision.

Legislation

Section 5F of the Migration Act 1958 defined spouse at the relevant time as follows:
(1)For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2)For the purposes of subsection (1), persons are in a married relationship if:
(a)they are married to each other under a marriage that is valid for the purposes of this Act; and
(b)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c)the relationship between them is genuine and continuing; and
(d)they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3)The regulations may…

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: [2018] FCCA 497
Decision Date: 2 March 2018

CaseChat Overview and Summary

In *Truong v Minister for Immigration*, the applicant, Mr Truong, sought judicial review of a decision by the Minister for Immigration to refuse his application for a Protection visa. The dispute centred on whether Mr Truong had established a well-founded fear of persecution for a reason specified in section 5 of the *Migration Act 1958* (Cth). The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in their assessment of Mr Truong's claims, specifically concerning whether he had a well-founded fear of persecution based on his imputed political opinion. The Court was required to determine if the delegate had properly considered all relevant evidence and applied the correct legal principles in reaching their conclusion that Mr Truong did not meet the criteria for a Protection visa.

Judge Riley found that the delegate had failed to adequately consider the evidence relating to the applicant's imputed political opinion and the potential consequences of that imputation in his country of origin. The Court applied the principles established in *Chan v Minister for Immigration and Ethnic Affairs* and *Applicant A v Minister for Immigration and Ethnic Affairs*, emphasizing the need for a holistic and objective assessment of the applicant's claims, including the subjective fear and the objective country information. The delegate's assessment was found to be flawed due to an insufficient analysis of the nexus between the imputed political opinion and the risk of harm.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders