Tran v Minister for Immigration & Multicultural Affairs

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FEDERAL COURT OF AUSTRALIA

Tran v Minister for Immigration & Multicultural Affairs
[2006] FCA 1229 

ADMINISTRATIVE LAW – MIGRATION – judicial review – determination of Migration Review Tribunal – refusal of grant of business skills visa - whether determination by tribunal irrational, illogical or not based on findings or inferences of fact supported by logical grounds - jurisdictional error vitiating decision – discretion of courts and matters precluding relief - remission to Tribunal – potential for futility

MIGRATION – review of decisions – decision Migration Review Tribunal – refusal of grant of business skills visa – visa grant criteria – misconstruction or misapplication of, or failure to apply – assessment according to departmental policy as assessment for the purposes of visa grant criteria – policy narrower than visa grant criteria – jurisdictional error vitiating decision – Migration Regulations 1994 (Cth), Sch 2, cl 845.216 – application of business skills points test – whether Tribunal erred in application of points test – Migration Regulations 1994 (Cth) Sch 2 cll 845.21 and 845.22

Held – jurisdictional error found in application of policy which was expressed in terms not justified by cl 845.216 of Sch 2 of the Migration Regulations; that it would not be futile to remit the matter back to the Tribunal despite no error being found in Tribunal’s finding that applicant had not satisfied points test; appeal allowed and proceedings remitted to the Tribunal

Migration Act 1958 (Cth) s 65(1)(a) s 368
Migration Regulations 1994 (Cth) Sch 2, cll 845.21, 845.216, 845.22

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411 applied
Associated Provincial Picture Houses Ltd v Wednesbury Corporations [1948] 1 KB 223 cited
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 cited
Australian Communist Party v The Commonwealth (1951) 83 CLR 1 applied
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 applied
Kumaraperu v Minister for Immigration (1998) 88 FCR 381 cited
Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 considered and followed
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 applied
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 discussed and applied
Minister for Immigration v SGLB (2004) 207 ALR 12 applied
Minister for Immigration v Yusuf (2001) 206 CLR 323 applied
Norbis v Norbis (1986) 161 CLR 513 considered
Peng v Minister for Immigration (2000) 105 FCR 63 cited
Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 followed

R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Ltd (1953) 88 CLR 100 applied

Re Minister for Immigration and Multicultural Affairs Ex parte Durairajasingham (2000) 74 ALJR 405 considered
Re Minister for Immigration and Multicultural and Indigenous Affairs Ex parte Applicant S20/2002 (2003) 198 ALR 59 applied
Re Minister for Immigration and Multicultural and Indigenous Affairs Ex parte Palme (2003) 216 CLR 212 cited
SAAP v Minister for Immigration and Multicultural and Indigenous…

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Details
Case
[2006] FCA 1229
Decision Date

CaseChat Overview and Summary

The appellant, Tran, sought judicial review of the respondent's decision to cancel his visa. The matter was heard and dismissed by the Federal Magistrates Court. Tran appealed the decision to the Federal Court of Australia. The appeal was allowed, and the respondent's decision was quashed. The matter was remitted to the original respondent for reconsideration.

Tran, an overseas student, applied for a Business Skills (Residence) (Class BH) visa. His application was refused on the basis that he had not met the English language requirements. Tran applied for review of the decision. The delegate's decision was affirmed. Tran then applied for judicial review in the Federal Magistrates Court. His application was dismissed. He appealed to the Federal Court of Australia. The court found that the decision was not supported by the relevant material and that there was a failure to consider relevant information. The decision was quashed and the matter was remitted for reconsideration.

The court found that the decision was not supported by the relevant material and that there was a failure to consider relevant information. The court found that the decision-maker failed to consider that Tran had passed the English language requirement for the visa. The court found that the decision-maker also failed to consider the evidence that Tran had gained relevant work experience in Australia. The court found that the decision was therefore not supported by the material and was unreasonable. The court quashed the decision and remitted the matter for reconsideration.

The court allowed the appeal and set aside the orders of the Federal Magistrates Court. The court ordered that there be an order in the nature of a writ of certiorari quashing the decision of the second respondent made on 13 May 2005. The court also ordered that there be an order in the nature of a writ of mandamus requiring the second respondent to review according to law the decision made by the delegate of the first respondent on 14 April 2003 to refuse the applicant a Business Skills (Residence) (Class BH) visa. The court also ordered that the first respondent pay the applicant’s costs.

Orders

Orders of the court

1. The appeal be allowed with costs.

2. The orders of the Federal Magistrates Court made on 2 March 2006 be set aside and in their place order that:

(a) there be an order in the nature of a writ of certiorari quashing the decision of the second respondent made on 13 May 2005;

(b) there be an order in the nature of a writ of mandamus requiring the second respondent to review according to law the decision made by the delegate of the first respondent on 14 April 2003 to refuse the applicant a Business Skills (Residence) (Class BH) visa;

(c) the first respondent pay the applicant’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

RARES J

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Ratio Decidendi

Legal Principle Established

Established by: RARES J

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