Ultimate Vision Inventions Pty Ltd v Innovation and Science Australia

[2023] FCAFC 23

FEDERAL COURT OF AUSTRALIA

Ultimate Vision Inventions Pty Ltd v Innovation and Science Australia [2023] FCAFC 23

Appeal from:

Ultimate Vision Inventions Pty Ltd v Innovation and Science Australia [2022] FCA 606

File number:

VID 357 of 2022

Judgment of:

THAWLEY, MCELWAINE AND HESPE JJ

Date of judgment:

2 March 2023

Catchwords:

ADMINISTRATIVE LAW – appeal from orders dismissing an application for review of Tribunal decision – Tribunal decision largely replicated respondent’s submissions without attribution – requirement in merits review to consider application afresh – constructive failure by Tribunal to discharge its statutory task – Held: appeal allowed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s44

Migration Act 1958 (Cth) Part 7

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593

Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; 270 FCR 335

Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39; 24 ALR 577

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431

Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; 113 CLR 475

Moreton Resources Ltd and Innovation and Science Australia (Taxation) [2018] AATA 3378

MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133; 234 FCR 154

Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286

Division:

General Division

Registry:

Victoria

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

22

Date of hearing:

23 February 2023

Solicitor for the Appellant:

Ms J York

Counsel for the Respondent:

Ms M Baker SC and Mr J Patela

Solicitor for the Respondent:

King & Wood Mallesons

ORDERS

VID 357 of 2022

BETWEEN:

ULTIMATE VISION INVENTIONS PTY LTD

Appellant

AND:

INNOVATION AND SCIENCE AUSTRALIA

Respondent

ORDER MADE BY:	THAWLEY, MCELWAINE AND HESPE JJ
DATE OF ORDER:	2 MARCH 2023

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The respondent pay the appellant’s costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. The appellant appeals from orders made by the primary judge dismissing its “appeal” under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act): Ultimate Vision Inventions Pty Ltd v Innovation and Science Australia [2022] FCA 606 (“J”).  It is unnecessary to repeat the factual background.  It is clearly and thoroughly set out by the primary judge in his reasons.

2. The appellant relied on nine grounds of appeal before this court.  At the centre of its case was a contention that the Administrative Appeals Tribunal failed properly to exercise its jurisdiction to conduct a “review” of the kind it was required to conduct.  It was common ground that, if this contention was made out, the matter would need to be remitted to the Tribunal to…