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Vuong v Minister for Home Affairs

Vuong v Minister for Home Affairs

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Case Copied 5 April 2019 45 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

VUONG v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 827

Catchwords:
MIGRATION – Partner visa – applicant marries sponsor following expiry of tourist visa – delegate not satisfied parties are in genuine relationship – Tribunal not satisfied criteria for visa are met – criteria for visa – Tribunal fails to make findings as to specific matters prescribed by regulations – parties’ living arrangements and sharing of responsibility for housework – whether Tribunal failed to take into account relevant considerations or took into account irrelevant considerations – whether mandatory considerations for evaluation of Tribunal – scope of obligation to consider evidence and claims – where claim reformulated on application for judicial review – applicable principles – application allowed.

Legislation:

Federal Circuit Court Rules 1999, r.44.12

Migration Act 1958 (Cth), ss.5F, 5J, 31, 65, 109, 348, 368, 474, 476, 498

Migration Regulations 1994 (Cth), regs.1.15A, 2.41, sch.1, pt.1 cl.1124B, pt.2 cl 1214C, Sch.2 cl 801.21, 801.211, 801.22, 801.221, 820.211, 820.221

Cases cited:

Abebe v The Commonwealth (1999) 197 CLR 510

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593

Craig v South Australia (1995) 184 CLR 163

He v Minister for Immigration and Border Protection (2017) 255 FCR 41

Li v Minister for Immigration and Citizenship (2008) 102 ALD 354

Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86

Malhi v Minister for Immigration and Border Protection [2017] FCCA 119

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Border Protection v Angkawijaya [2016] 236 FCR

303

Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431

Minister for Immigration and Citizenship v Khadgi (2010) 274 ALR 438

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR

259

Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR

214

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB

(2004) 78 ALJR 992

MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 497

MZZQY v Minister for Immigration and Border Protection [2015] FCA 883

MZZUT v Minister for Immigration and Border Protection [2015] FCA 141

NABE v Minister for Immigration and Multicultural and Indigenous Affairs

(2006) 228 CLR 152[2004] 219 ALR 27

Nguyen v Minister for Immigration and Border Protection [2018] FCA 1374

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

SGBB v Minister for Immigration and Multicultural and Indigenous Affairs

(2003) 199 ALR 364

Sun v Minister for Immigration and Border Protection [2017] FCA 1270

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs

(2006) 228 CLR 152

S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216

CLR 473

Tuitaalili v Minister for Immigration and Citizenship [2012] FCAFC 24

Williams…

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: [2019] FCCA 827
Decision Date: 5 April 2019

CaseChat Overview and Summary

In *Vuong v Minister for Home Affairs*, the applicant sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) affirming the delegate's refusal of a partner visa. The applicant had married the sponsor after her tourist visa expired, and the delegate was not satisfied that the parties were in a genuine relationship. The AAT subsequently affirmed this refusal, finding that the criteria for the partner visa were not met.

The central legal issues before the court were whether the AAT had failed to make findings as to specific matters prescribed by the regulations for evaluating the genuineness of a relationship, specifically concerning the parties' living arrangements and the sharing of responsibility for housework. The court also considered whether the AAT had failed to take into account relevant considerations or had taken into account irrelevant considerations, and the scope of the AAT's obligation to consider all evidence and claims, particularly where a claim was reformulated during the judicial review process.

Justice Kelly found that the AAT had erred in law. The Tribunal had failed to make specific findings on crucial aspects of the relationship, such as the parties' living arrangements and the division of domestic responsibilities, which were mandatory considerations under the relevant regulations. The court held that the AAT's obligation extended to considering all evidence and claims presented, and that its failure to adequately address these prescribed matters amounted to a failure to take into account relevant considerations and a failure to properly exercise its jurisdiction. The application for judicial review was allowed.

Orders