Tran, Dien Loan v Immigration & Multicultural Affairs [1998] FCA 290

FEDERAL COURT OF AUSTRALIA

MIGRATION - Preferential Relative Visa - whether applicant for visa, despite divorce, still "in a de facto relationship" - if so, existence of such a relationship constituted a disqualification from obtaining such a visa - requirement of relevant regulation that Minister be satisfied that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship between them is genuine and continuing - Tribunal found that applicant and "husband have had contact and are still in a continuous relationship together" - no reference to mutual commitment to a shared life to the exclusion of all others - whether Tribunal erred in law by failing to ask the right questions - whether Tribunal otherwise provided a fair and just mechanism of review or acted according to substantial justice - whether it would be futile to remit the matter to the Tribunal for further consideration.

Migration Act 1958 (Cth) ss 346, 353, 363 420, 476 Migration Regulations 1989 reg. 1.15A

Suk Hong Yoon v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Branson J, unreported 20 February 1988), distinguished Minister for Immigration, Local Government and Ethnic Affairs v Dhillon (Federal Court of Australia, Full Court, unreported, 8 May 1990), referred to Chand v Minister for Immigration and Multicultural Affairs (1996) 44 ALD 583, referred to Rahim v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, Sackville J, unreported, 28 August 1997, Judgment No 884 of 1997), distinguished Yuk Shan Cheung v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, Einfeld J, unreported, Judgment No 1343 of 1997) distinguished

DIEN LOAN TRAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS No. VG 601 of 1997 CARR J MELBOURNE 20 MARCH 1998