Ji v Minister for Immigration and Multicultural Affairs

[2001] FCA 1744

FEDERAL COURT OF AUSTRALIA

Ji v Minister for Immigration & Multicultural Affairs [2001] FCA 1744

ZHE JI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1347 of 2001

SACKVILLE J
SYDNEY
7 DECEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1347 OF 2001

BETWEEN:	ZHE JI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	7 DECEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The decision of the Migration Review Tribunal dated 12 September 2001 be set aside.

2.The matter be remitted to a differently constituted Tribunal for further consideration according to law.

3.        The Respondent pay the Applicant’s costs in the agreed amount of $4,500.”

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1347 OF 2001

BETWEEN:	ZHE JI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	7 DECEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter, the parties have submitted Short Minutes of Order, to be made by consent, in the following terms:

   “(1)The decision of the Migration Review Tribunal dated 12 September 2001 be set aside.

   (2)That the matter be remitted to a differently constituted Tribunal for further consideration according to law.

   (3)The Respondent pay the Applicant’s costs in the agreed amount of $4,500.”

2. After the Short Minutes of Order were forwarded to my Chambers, I asked the parties to provide either an agreed statement, or separate statements, identifying the basis for the order setting aside the decision of the Migration Review Tribunal.  The parties supplied a joint statement, in the following terms:

   “Reg 457.223(7)(a)(ii) of the Migration Regulations required the Migration Review Tribunal to consider whether the proposed business activities of the applicant will be of benefit to Australia. It appears possible that the Tribunal instead gave consideration to whether the applicant’s current business activities were of benefit to Australia. Accordingly, the decision of the Migration Review Tribunal involved a possible error of law within the meaning of s 476(1)(e) of the Migration Act 1958, in that the Tribunal did not consider whether the proposed activities will be of benefit to Australia in the future. This is a matter commenced in the Court before 2 October 2001 and accordingly the applicable provisions are those of the Migration Act 1958 as it stood prior to amendment by the Migration Legislation Amendment (Judicial Review) Act 2001.”

3. It will be seen that the joint statement refers to the possibility that the Tribunal gave consideration to the wrong issue.  I am satisfied that the Tribunal did give consideration to the wrong question, and failed to consider the correct question, namely whether the applicant’s proposed business activities will be of benefit to Australia.  Accordingly, I am prepared to make orders in accordance with the Short Minutes of Order.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE.

Associate:

Dated:             7 December 2001

Solicitor for the Applicant:	Yandell Wright Stell
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Short Minutes of Order:	6 December 2001
Date of Judgment:	7 December 2001