Pham v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 394

Pham v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 394

The appeal was dismissed because, although the Tribunal had not clearly explained the consequences of relying on the adverse information under s 359AA, the failure was not material. The nature of the relationship was the central issue, Mr Pham was represented, received an adjournment, denied the allegations, and his representative was permitted to make further submissions; no reasonable inference arose that he would have responded differently. Leave to raise the new s 359A ground was refused because Ms Vo's evidence did not in terms reject, deny or undermine Mr Pham's claim of a genuine relationship at the time of application and therefore no s 359A(1) obligation arose.

Jurisdiction
Australia
Judgment Date
03 May 2023
Procedural Posture
Migration Appeal / Appeal From the Federal Circuit and Family Court of Australia Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming a Delegate's Refusal to Grant a Temporary Partner Visa
Outcome
Appeal dismissed; leave to raise proposed ground 3 refused; appellant ordered to pay the first respondent's costs.
Legal Topics
['partner Visa' 'jurisdictional Error' 'materiality' 'migration Act 1958 (cth) S 359 Aa' 'migration Act 1958 (cth) S 359 A' 'leave to Raise New Appeal Ground']
['migration Law' 'administrative Law'] ['partner Visa' 'jurisdictional Error' 'materiality' 'migration Act 1958 (cth) S 359 Aa' 'migration Act 1958 (cth) S 359 A' 'leave to Raise New Appeal Ground']

Case Brief

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Procedural Posture

Migration Appeal / Appeal From the Federal Circuit and Family Court of Australia Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming a Delegate's Refusal to Grant a Temporary Partner Visa

Legal Issues

  1. 1 ["Whether the Tribunal's failure to comply with s 359AA(1)(b)(i) of the Migration Act 1958 (Cth) was material." "Whether Mr Pham was denied a realistic possibility of a favourable outcome by the Tribunal's failure to give a more fulsome account of how information might be relied on." "Whether leave should be granted to raise a new appeal ground alleging breach of s 359A(1) in relation to Ms Vo's evidence." "Whether Ms Vo's evidence enlivened the Tribunal's obligation under s 359A(1)."]

Ratio Decidendi

The appeal was dismissed because, although the Tribunal had not clearly explained the consequences of relying on the adverse information under s 359AA, the failure was not material. The nature of the relationship was the central issue, Mr Pham was represented, received an adjournment, denied the allegations, and his representative was permitted to make further submissions; no reasonable inference arose that he would have responded differently. Leave to raise the new s 359A ground was refused because Ms Vo's evidence did not in terms reject, deny or undermine Mr Pham's claim of a genuine relationship at the time of application and therefore no s 359A(1) obligation arose.

Court Disposition

Appeal dismissed; leave to raise proposed ground 3 refused; appellant ordered to pay the first respondent's costs.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs to be assessed if not agreed."]