Lam v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1649 (12 August 2002)

Last Updated: 13 August 2003

FEDERAL COURT OF AUSTRALIA

Lam v Minister for Immigration & Multicultural & Indigenous Affairs

[2002]  FCA 1649

MIGRATION - application for judicial review of Migration Review Tribunal decision - principles for making order by consent setting aside the decision of the Tribunal.

Migration Act 1958 (Cth) ss , 476, 481, 486

Federal Court Rules O 35 r 10

Xiao v Minister for Immigration & Multicultural Affairs [2001] FCA 459; (2001) 109 FCR 129 cited ; Yulianti v Minister for Immigration & Multicultural Affairs [2001] FCA 142 cited ; Sanchez v Minister for Immigration & Multicultural Affairs [1999] FCA 265 cited ; Takli v Minister for Immigration & Multicultural Affairs [2000] FCA 1186 cited ; Khan v Minister for Immigration & Multicultural Affairs [2001] FCA 1674 cited ;

Lich Dinh Lam V Minister For Immigration & Multicultural & Indigenous Affairs

W328 OF 2001

LEE J

12 AUGUST 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W328 OF 2001

BETWEEN:	LICH DINH LAM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LEE J
DATE OF ORDER:	12 AUGUST 2002
WHERE MADE:	PERTH

BY CONSENT THE COURT ORDERS THAT:

1. The decision of the Migration Review Tribunal made 27 June 2001 be set aside.

2. The matter be remitted to the Migration Review Tribunal differently constituted for reconsideration according to law.

3. There be no order as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W328 OF 2001

BETWEEN:	LICH DINH LAM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	LEE J
DATE:	12 AUGUST 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

LEE J:

1 The applicant applied under s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Migration Review Tribunal ("the Tribunal"). The decision, made on 27 June 2001, affirmed a decision of the delegate of the Minister not to grant a Preferential Relative (Migrant) (Class AY) visa to the applicant's sister and her family, comprising her husband and their six children. The applicant is an Australian citizen who was born in Vietnam. He arrived in Australia in 1981. His sister, her husband and their six children are named on the application as "Visa applicants".

2 It was not in issue that the Court has jurisdiction in this matter pursuant to s 486 of the Act. In the exercise of that jurisdiction, the Court has a discretion to make orders set out in s 481, including the power to set aside the decision of the Tribunal and to remit the matter to the Tribunal for reconsideration.

3 This matter was set down for hearing on 13 August 2002. Prior to the hearing a minute of consent orders prepared pursuant to O35 r 10 of the Federal Court Rules, was received from the parties proposing that orders be made to set aside the decision of the Tribunal, to remit the matter to the Tribunal differently constituted, for reconsideration according to law, and that there be no order as to costs. An affidavit was also received from a solicitor employed by the Australian Government Solicitor conducting the matter on behalf of the respondent. The affidavit stated that the respondent had accepted a recommendation that the matter be remitted to the Tribunal for redetermination for the following reasons:

"(a) the Tribunal, in disqualifying the applicant as a "remaining relative" of her brother under sub regulation 1.15(2) of the Migration Regulations, stated that:-

(i) there was evidence to show that the visa applicant had a sister residing overseas whom she was in contact with; and

(ii) it relied on oral evidence given by the review applicant at the hearing which purportedly indicated that the visa applicant's mother in law was alive and residing in Vietnam

(b) upon our review of the transcript of the hearing held before the Tribunal, it would appear that:-

(i) there was no evidence before the Tribunal which goes towards showing that the visa applicant was in contact with her sister who was residing overseas; and

(ii) there was no oral evidence requested of or given by the review applicant at the hearing about the visa applicant's mother in law's whereabouts or at all.

(c) accordingly, the combination of the above matters, may arguably, constitute an error of law under s476(1)(g) read with s476(4)(b) of the Migration Act."

4 As noted above, at all times the Court had jurisdiction in the matter. The only issue is whether the consent of the parties is sufficient to satisfy the Court that it should exercise the discretion to make orders under s 481 of the Act. The minute of consent is an acknowledgment by the parties that ground for review under s 476 would have been established if the trial of the proceeding had continued, and that the parties were satisfied that the Court should exercise a power conferred on it by s 481 of the Act.

5 In the circumstances described I am satisfied that the concession made is appropriate and that it is sufficient to enable the Court to make an order under by s 481 of the Act. I am also satisfied that it is proper to exercise the discretion in the manner sought by the parties. The Tribunal, of course, will have to decide the matter afresh, not restricted to consideration of the issue which the parties agreed provided ground for review of the earlier decision.

6 It is not necessary that a particular ground of review be recited in the order as a pre-condition for the making of the order. (See: Xiao v Minister for Immigration and Multicultural Affairs [2001] FCA 459; (2001) 109 FCR 129; Yulianti v Minister for Immigration and Multicultural Affairs [2001] FCA 142; Sanchez v Minister for Immigration and Multicultural Affairs [1999] FCA 265; Takli v Minister for Immigration and Multicultural Affairs [2000] FCA 1186.)

7 Similarly, it is not necessary for this Court to explain why a consent order has been made if it is apparent that the Court has jurisdiction in the matter and that the proposed order is within the power of the Court. It is sufficient that the Court be satisfied that it is appropriate that the order be made as requested by the parties. (Cf: Khan v Minister for Immigration and Multicultural Affairs [2001] FCA 1674.)

8 I will, therefore, make an order in terms of the minute.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Associate:

Dated: 12 August 2003

Solicitor for the Applicant:	Wojtowicz Kelly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Judgment:	12 August 2002