Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 934

Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 934

The Federal Circuit Court and the Tribunal erred by construing reg 1.15AA(1)(e) of the Migration Regulations 1994 (Cth) as requiring consideration only of the assistance needed at the time of the decision rather than over the minimum certified period of two years. The assistance referred to in reg 1.15AA(1)(e) is that which the resident will require for at least two years due to their medical condition, as certified under reg 1.15AA(1)(b)(iv). The failure to assess the continuous and forward-looking capacity of relatives to provide such assistance constitutes a material jurisdictional error.

Parties
Appellant: Thi Dao Nguyen; First Respondent: Minister for Immigration, Citizenship and Multicultural Affairs; Second Respondent: Administrative Appeals Tribunal
Jurisdiction
Australia
Judgment Date
18 June 2019
Procedural Posture
Migration Appeal / Appeal From Federal Circuit Court Decision on Judicial Review
Outcome
Appeal allowed
Legal Topics
Carer's Visa, Construction of Migration Regulations, Judicial Review, Jurisdictional Error
Migration Law Administrative Law Carer's Visa Construction of Migration Regulations Judicial Review Jurisdictional Error

Case Brief

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Parties

Thi Dao Nguyen

Appellant

Minister for Immigration, Citizenship and Multicultural Affairs

First Respondent

Administrative Appeals Tribunal

Second Respondent

Procedural Posture

Migration Appeal / Appeal From Federal Circuit Court Decision on Judicial Review

Legal Issues

  1. 1 Proper construction of 'the assistance' and its temporal link in reg 1.15AA(1)(e) of the Migration Regulations 1994 (Cth)
  2. 2 Whether the Tribunal failed to consider the ongoing capacity of relatives to provide care for at least two years, as required by the regulations
  3. 3 Whether such a failure constitutes jurisdictional error

Ratio Decidendi

The Federal Circuit Court and the Tribunal erred by construing reg 1.15AA(1)(e) of the Migration Regulations 1994 (Cth) as requiring consideration only of the assistance needed at the time of the decision rather than over the minimum certified period of two years. The assistance referred to in reg 1.15AA(1)(e) is that which the resident will require for at least two years due to their medical condition, as certified under reg 1.15AA(1)(b)(iv). The failure to assess the continuous and forward-looking capacity of relatives to provide such assistance constitutes a material jurisdictional error.

Court Disposition

Appeal allowed

Orders

  • The appeal is allowed.
  • Orders of the Federal Circuit Court of Australia made on 20 December 2018 are set aside, and substituted with: (a) A writ of certiorari quashing the Tribunal's refusal of 23 August 2016; (b) A writ of mandamus requiring the Tribunal to determine according to law the review of the delegate’s decision of 26 August...