Vo v Minister for Immigration - [2018] FCCA 3609

FEDERAL CIRCUIT COURT OF AUSTRALIA

VO v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3609

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Regional Employer Nomination (Permanent) (Class RN) visas – whether the Tribunal misconstrued the statutory provisions – whether the Tribunal failed to have regard to all the circumstances in determining whether the applicant met the statutory requirements – whether the Tribunal’s adverse findings lack an evident and intelligible justification – whether Tribunal acted unreasonably – no jurisdictional error made out – amended application dismissed.

Legislation:

Act Interpretation Act 1901 (Cth), ss.2, 23

Migration Act 1958 (Cth), s.476

Migration Amendments Regulations 1999 (No. 13) (Cth)

Migration Regulations 1994 (Cth), rr.1.05A, 1.12, cl 187.311

Cases cited:

Fernandez v Minister for Immigration and Border Protection [2015] FCA 1265

Applicant:

TUNG LONG THI VO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 485 of 2016

Judgment of:

Judge Street

Hearing date:

5 December 2018

Date of Last Submission:

5 December 2018

Delivered at:

Perth

Delivered on:

5 December 2018

REPRESENTATION

Counsel for the Applicant:

Mr S Walker

Solicitors for the Applicant:

Christina Chang Lawyers

Solicitors for the Respondents:

Mr A Gerrard
Australian Government Solicitor

ORDERS

The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

DATE OF ORDER: 5 December 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 485 of 2016

TUNG LONG THI VO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 20 September 2016 affirming a decision of the delegate not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.
The applicant is a citizen of the United States of America and was born in Vietnam. On 26 March 2015, the applicant applied for the visa on the basis of being a member of a family unit of her son, the primary applicant. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant was usually resident in her son’s household, in accordance with cl 187.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).
On 23 October 2015, the applicant applied to the Tribunal for review of the decision. The applicant appeared at a hearing on 19 July 2016 to give evidence and present arguments.
The Tribunal identified the requirements of cl 187.311 of the Regulations and the definition of “dependent”. The Tribunal referred to the definition turning on a finding of fact that the applicant is ‘wholly or substantially reliant’ on the other person for financial support as a matter of fact, and is so reliant at the time that the finding of dependence is made and…

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 3609
Decision Date: 5 December 2018

CaseChat Overview and Summary

Vo applied to the Administrative Appeals Tribunal for a Regional Employer Nomination (Permanent) (Class RN) visa. The Minister for Immigration opposed the application. The matter came before Judge Street of the Federal Court of Australia.

The central legal issues before the Court were whether the Tribunal had misconstrued the relevant statutory provisions governing the visa application, whether it had failed to consider all the circumstances relevant to determining if the applicant met the statutory requirements, and whether its adverse findings were lacking in evident and intelligible justification, thereby amounting to unreasonableness.

Judge Street found that the Tribunal had not made a jurisdictional error. The Court concluded that the Tribunal had properly considered the statutory provisions and the applicant's circumstances, and that its findings were supported by an evident and intelligible justification. Consequently, the Court dismissed the amended application.

Orders