Family of child with Down syndrome quashes invalid visa refusal in the Federal Court of Australia

Client(s) Dang family

Jones Day has been acting pro bono for Ms. Kim Dang and her family since 2016. The Dang family is from Vietnam and has been living in Australia together since 2012. In 2013 they applied for permanent visas, but their application was denied solely because their son has Down syndrome and therefore did not meet the relevant health requirements under the federal migration legislation. The Dang family sought review of that decision by the Administrative Appeals Tribunal ("AAT") in 2014 but was unsuccessful. In November 2016 the family was told to leave Australia immediately.

Jones Day commenced judicial review proceedings in 2016 in the Federal Circuit Court of Australia, seeking to quash the AAT's decision. While that application was unsuccessful, in December 2019 Jones Day was successful in winning an appeal to the Federal Court of Australia ("FCA") against the Federal Circuit Court's decision. The FCA's decision found that: 1) the Dang family's appeal was valid and should be upheld; 2) the decision in the Federal Circuit Court refusing judicial review was incorrect and should be set aside; 3) the decision by the AAT not to grant the Dang family's visas was infected by jurisdictional error and should be set aside; and 4) the matter must now be remitted to the AAT and redetermined according to law.

This is a great outcome for the Dang family after several years of litigation. Had the appeal to the FCA been unsuccessful, the family would have been required to leave Australia within a matter of weeks. Jones Day is now doing all it can to ensure the family is granted permanent visas to remain in Australia.

Dang v. Administrative Appeals Tribunal [2019] FCAFC 220