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Lu v MIAC

Lu v MIAC

Case [2009] FMCA 891 22 September 2009

Administrative Appeals Tribunal

Administrative Law

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

LU & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 891

MIGRATION – Application to review decision of Administrative Appeals Tribunal – cancellation of business skills visa – whether Tribunal misconstrued or misinterpreted the word “business” in s.134 of the Migration Act or failed to consider the applicants’ claims – whether no evidence for finding or failure to consider evidence.

Administrative Appeals Tribunal Act 1975 (Cth), ss.39, 43

Migration Act 1958 (Cth), ss.54, 134, 135

Applicants:

CHUN HOU LU & SHAO HWA WANG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2723 of 2008

Judgment of:

Barnes FM

Hearing date:

3 August 2009

Date of Last Submission:

7 August 2009

Delivered at:

Sydney

Delivered on:

22 September 2009

REPRESENTATION

Counsel for the Applicants:

Mr L Karp

Solicitors for the Applicant:

Ren Zhou Lawyers

Counsel for the Respondent:

Mr JAC Potts

Solicitors for the Respondent:

Clayton Utz

ORDERS

That a writ in the nature of certiorari issue directed to the second respondent, quashing the following decisions made by the Administrative Appeals Tribunal made on 25 September 2008:
(a)the decision in relation to the first applicant in proceedings no. 2007/3912; and
(b)the decision in relation to the second applicant in proceedings no. 2007/3913.
That a writ in the nature of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the following applications made to the Administrative Appeals Tribunal on 17 August 2007:
(a)the application of the first applicant in proceedings no. 2007/3912; and
(b)the application of the second applicant in proceedings no.…

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 Lu v MIAC

Details

AGLC: Lu v MIAC [2009] FMCA 891
Case: [2009] FMCA 891
Decision Date: 22 September 2009

CaseChat Overview and Summary

Lu and another (referred to as the applicants) brought proceedings against the Migration and Immigration Appeals Tribunal and another (referred to as the respondents) seeking review of decisions made by the AAT concerning their applications for visas. The applicants challenged the AAT’s decisions on the basis that they were flawed, and the Federal Court was asked to issue writs in the nature of certiorari and mandamus to quash the AAT’s decisions and to compel the AAT to re-determine the applicants’ visa applications. The court had to determine whether the AAT had made jurisdictional or other errors in reaching its decisions, and whether the court should issue the requested writs. The court found that the AAT had indeed made jurisdictional errors in reaching its decisions and concluded that the applicants had demonstrated that the AAT had failed to consider material information and had not exercised its discretion in accordance with the law. As a result, the court quashed the AAT’s decisions and ordered the AAT to re-determine the applicants’ visa applications. The court found that the AAT had not adequately considered the evidence and had failed to exercise its discretion in accordance with the law. The court held that the AAT’s decisions were therefore flawed and that the applicants were entitled to the relief sought.

Orders

Orders of the court

That a writ in the nature of certiorari issue directed to the second respondent, quashing the following decisions made by the Administrative Appeals Tribunal made on 25 September 2008:

(a) the decision in relation to the first applicant in proceedings no. 2007/3912; and

(b) the decision in relation to the second applicant in proceedings no. 2007/3913.

That a writ in the nature of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the following applications made to the Administrative Appeals Tribunal on 17 August 2007:

(a) the application of the first applicant in proceedings no. 2007/3912; and

(b) the application of the second applicant in proceedings no. 2007/3913.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Lu v MIAC [2009] FMCA 891

Most Recent Citation

Zhang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 656

Cases Citing This Decision

Zhang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 656
Citation 1 (Para 11)

…ss’ used by Federal Magistrate Barnes for the purposes of s 134 in Chun Hou Lu v Minister for Immigration and Citizenship (2009) 112 ALD 125; [2009] FMCA 891 at [40], namely ‘a commercial enterprise or going concern’. This case was referred to in the applicants’ opening remarks to the Tribunal as authority for the…
Zhang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1051
Citation 2 (Para 20)

…reach a positive state of satisfaction that at least one of sub-ss (a), (b) or (c) is satisfied.[17] [15] [2002] FCA 1496 ( Chen ). [16] [2009] FMCA 891 ( Lu ). [17] Weng v Minister for Immigration and Citizenship (No 2) [2011] FCA 444 at [42] per McKerracher J.…
AMBAKKAT v Minister for Immigration [2011] FMCA 916
Citation 3 (Para 11)

…80 ALD 534; (2004) 211 ALR 261; [2004] FCAFC 248 at [24] to [35], Lu & Anor v Minister for Immigration & Anor (2009) 235 FLR 257; (2009) 112 ALD 125; [2009] FMCA 891 at [67] to [69] and Martinez v Minister for Immigration & Anor (2009) 177 FCR 337; (2009) 109 ALD 260; (2009) 256 ALR 32; [2009] FCA 528 at [32], [43…
Lu and Anor and Minister for Immigration and Citizenship [2010] AATA 177
Citation 4 (Para 7)

…decision in relation to Mr Lu and Ms Wang and remitted this to the Tribunal for reconsideration: Lu & Anor v Minister for Immigration and Citizenship [2009] FMCA 891. Federal Magistrate Barnes found that the Tribunal made a factual error of such fundamental importance as to establish a miscarriage in the fact-find…

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Cases Cited

Kushner v MIAC [2009] FMCA 390
Citation 1 (Para 3)

…In Kushner v Minister for Immigration & Anor [2009] FMCA 390 at [47] Driver FM suggested that the question of an applicant’s motivation in setting up a business “ was a distraction from the enquiry required of the Tribunal unless it was directed to determining whether the business was “ a business ” for the purpos…
Martinez v Minister for Immigration and Citizenship [2009] FCA 528
Citation 2 (Para 9)

…ected the exercise of power it would fall into jurisdictional error ( Craig at 179 and Toro Martinez v Minister for Immigration & Citizenship [2009] FCA 528 at [43] per Rares J). The jurisdictional error considered above can be characterised as a failure by the Tribunal to have regard to such relevant material, b…
Liang v Minister for Immigration and Citizenship [2009] FCA 189
Citation 3 (Para 1)

…1) of the Migration Act. Reference was made to the fact that Logan J stated in Liang v Minister for Immigration and Citizenship and Another (2009) 175 FCR 184 at [30] that the word “ business ”, as used in terms “ main business” and “ qualifying business” in the Migration Regulations 1994 (Cth), was used in the sense…
SZKHD v Minister for Immigration and Citizenship [2008] FCA 112
Citation 4

…r (2005) 223 ALR 747 SZJRU v Minister for Immigration and Citizenship and Another (2009) 108 ALD 515 SZKHD v Minister for Immigration and Citizenship [2008] FCA 112 Toro Martinez v Minister for Immigration & Citizenship [2009] FCA 528 WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA…
SZHJS v Minister for Immigration and Multicultural Affairs [2006] FCA 1429
Citation 5 (Para 4)

…Multicultural & Indigenous Affairs [2003] FCAFC 319 at [16] – [19], NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [212] – [213] and [229] and Minister for Immigration & Multicultural Affairs v SBAA [2002] FCAFC 195 at [31] and [44].…
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72
Citation 6 (Para 9)

…Australia (1995) 184 CLR 163 at 179 and Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 225 CLR 88 at [16] – [17]. If a Tribunal granted or failed to consider relevant material in a way that affected the exercise of power it would fall into jurisdictiona…
SZFVL v Minister for Immigration [2005] FMCA 991
Citation 7 (Para 7)

…irst respondent referred to the approach taken by Driver FM, in SZFVL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 223 ALR 747 at [36]. His Honour referred to a factual error assuming “ legal significance if the fact [was] of such fundamental importance as to establish a misc…
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Citation 8 (Para 8)

…In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 the Full Court of the Federal Court considered the extent to which a factual error on the part of the Tribunal may evidence or constitute a failure to carry out its review function or otherwise amount to a failure of…
WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319
Citation 9 (Para 4)

…vidence or information essential to the applicant’s case, as considered in WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319 at [16] – [19], NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [212] – [213] and [229] and Minister for Immi…
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30
Citation 10 (Para 8)

…542] at [35] per McHugh J. The question was further discussed in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165. McHugh and Gummow JJ, with whom Callinan J agreed, rejected a submission by the Minister that the presence of an error of law was essential for a find…
Nassif v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 481
Citation 11 (Para 1)

…and that a business was an “ enterprise ” rather than an entity (see Nassif v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 448). Mr Lu’s case was said to be that his business was carried out using both Jason Tech and G Ping, but the Tribunal was said to have made the mistake of equ…
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
Citation 12 (Para 8)

…or and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigratio n and Multicultural Affairs v Yusuf (2001) 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wron…
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10
Citation 13 (Para 8)

…question it had to decide that its error constituted a jurisdictional error. Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 [75 ALJR 542] at [35] per McHugh J. The question was further discussed in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20…
Craig v South Australia [1995] HCA 58
Citation 14 (Para 9)

…s obligation is to make its determination having regard to “ relevant” material in the sense considered in Craig v The State of South Australia (1995) 184 CLR 163 at 179 and Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 225 CLR 88 at [16] – [17]. If a Tr…
Re Australian Industrial Relations Commission; ex parte Australian Transport Officers Federation [1990] HCA 52
Citation 15 (Para 7)

…and McHugh JJ observed in Re Australian Industrial Relations Commission and Others; Ex parte Australian Transport Officers Federation and Others (1990) 171 CLR 216 at 226, “[o] f all words, the word “ business ” is notorious for taking its colour and its content from its surroundings …”.…
Hope v Bathurst City Council [1980] HCA 16
Citation 16 (Para 6)

…efinition of “ business ” in the Migration Act. It referred to the approach taken by the High Court in Hope v The Council of the City of Bathurst (1980) 144 CLR 1 in which Mason J stated that the indicia of a “ business ” included “ activities engaged in for the purpose of profit on a continuous and repetitive basi…
[2002] FCAFC 195 [2002] FCAFC 195
Citation 17 (Para 4)

…lticultural and Indigenous Affairs (2005) 147 FCR 51 at [212] – [213] and [229] and Minister for Immigration & Multicultural Affairs v SBAA [2002] FCAFC 195 at [31] and [44].…

Legislation Cited

Migration Act 1958 (Cth) 134, 135, 54
4 mentions (from Para 2)
Administrative Appeals Tribunal Act 1975 (Cth) 39, 43
3 mentions (from Para 8)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
1 mention (from Para 8)
Local Government Act 1919 (NSW)
1 mention (from Para 6)
Migration Regulations 1994 (Cth)
1 mention (from Para 1)