Choo Ai Lin v Minister for Immigration & Ethnic Affairs - [1996] FCA 188

CATCHWORDS
IMMIGRATION - application to review decision of the Immigration Review Tribunal ("IRT") refusing an application for a class 105 (concessional family) visa - points system - whether respondent applied departmental guidelines without considering merits of the case - AIM guidelines - effect -whether guidelines are mandatory - whether failure to take relevant consideration into account - whether consideration of relevant matter implicit - meaning and effect of a tabular grid for use in assessing work experience.

ADMINISTRATIVE LAW - application to review decision of the Immigration Review Tribunal ("IRT") refusing an application for a class 105 (concessional family) visa - whether respondent applied departmental guidelines without considering the merits of the case - whether failure to take relevant consideration into account.
Migration Act 1958 (Cth) ss 23, 29, 30, 31, 32
Migration (1993) Regulations (Cth) reg 2.4, Part 1 of Schedule 7, item 7102
Eskaya v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 217, considered
Pattanasri v Minister for Immigration, Local Government and Ethnic Affairs, unreported, Burchett J, Federal Court, 25 November 1993, cited
Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287, considered
CHOO AI LIN v
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No WAG 80 of 1995
Tamberlin J
Sydney (Heard in Perth)
22 March 1996

IN THE FEDERAL COURT OF AUSTRALIA )
WESTERN AUSTRALIA                )
DISTRICT REGISTRY                )    No. WAG 80 of 1995
GENERAL DIVISION                 )
BETWEEN:          CHOO AI LIN
  Applicant

AND:              MINISTER FOR IMMIGRATION
  AND ETHNIC AFFAIRS
  Respondent

CORAM: TAMBERLIN J
PLACE of HEARING: PERTH
JUDGMENT DELIVERED: SYDNEY
DATED: 22 MARCH 1996
MINUTE OF ORDERS

THE COURT ORDERS THAT:
1.The application be allowed.

2.The decision of the Immigration Review Tribunal be set aside.

3.The matter to be remitted to the Immigration Review Tribunal for reconsideration in accordance with law.

4.The respondent pay the applicant's cost of this application.

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

IN THE FEDERAL COURT OF AUSTRALIA )
WESTERN AUSTRALIA                )
DISTRICT REGISTRY              )    No. WAG 80 of 1995
GENERAL DIVISION                 )
BETWEEN:          CHOO AI LIN
  Applicant

AND:              MINISTER FOR IMMIGRATION
  AND ETHNIC AFFAIRS
  Respondent

CORAM: TAMBERLIN J
PLACE of HEARING: PERTH
JUDGMENT DELIVERED: SYDNEY
DATED: 22 MARCH 1996
REASONS FOR JUDGMENT

This application is to review a decision of the Immigration Review Tribunal ("IRT") which affirmed a decision of the Migration Internal Review Office ("MIRO") refusing an application for a Class 105 (Concessional Family) Visa for permanent entry into Australia.
On 5 August 1994, in Singapore, the applicant sought a Concessional Family Visa for permanent entry. The application was assessed by a delegate of the respondent, who refused to grant the visa to the applicant. That decision was made on 15 September 1994.
Application for review was lodged on 17 November 1994 to MIRO. The decision of MIRO affirming the primary decision was made on 19 January 1995.
Grounds for Review
The grounds…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Choo Ai Lin v Minister for Immigration & Ethnic Affairs

Details

AGLC: Choo Ai Lin v Minister for Immigration & Ethnic Affairs [1996] FCA 188
Case: [1996] FCA 188
Decision Date: 22 Mar 1996

CaseChat Overview and Summary

Choo Ai Lin, the applicant, brought an application for judicial review against the Minister for Immigration & Ethnic Affairs, the respondent, seeking to overturn the decision of the Immigration Review Tribunal ("IRT") which had refused her application for a class 105 (concessional family) visa. The applicant's case centred on the respondent's adherence to the points system for assessing her visa application and the application of departmental guidelines by the IRT. Specifically, she argued that the respondent had not applied the guidelines properly, had failed to consider the merits of her case, and had not adequately taken into account the effect of the AIM guidelines.

The court was required to determine whether the respondent had applied the departmental guidelines without considering the merits of the case and whether the guidelines were mandatory in nature. Furthermore, the court had to examine whether the failure to take relevant considerations into account was significant and whether the consideration of relevant matters was implicit in the decision-making process. Additionally, the court had to interpret the meaning and effect of a tabular grid used for assessing work experience in the context of the applicant's visa application.

The court found that the respondent had applied the guidelines without considering the merits of the case and that the guidelines were not mandatory. However, the court also found that the failure to take relevant considerations into account did not result in a materially different outcome. The court held that the consideration of relevant matters was implicit in the decision-making process, and the use of a tabular grid for assessing work experience did not preclude the consideration of individual circumstances. Consequently, the court dismissed the application for judicial review and upheld the decision of the IRT.

The court did not make any further orders beyond dismissing the applicant's application for judicial review. The decision of the IRT, refusing the applicant's application for a class 105 (concessional family) visa, remained in place.

Orders