FEDERAL COURT OF AUSTRALIA
Vo v Minister for Home Affairs [2019] FCAFC 108
Appeal from:
Vo v Minister for Immigration and Border Protection [2018] FCCA 3609
File number:
WAD 603 of 2018
Judges:
DERRINGTON, BANKS-SMITH AND COLVIN JJ
Date of judgment:
25 June 2019
Catchwords:
MIGRATION - appeal from decision of the Federal Circuit Court dismissing application for review of decision of the Administrative Appeals Tribunal affirming delegate's decision to refuse the appellant's application for a Regional Employer Nomination (Permanent) (Class RN) visa - consideration of the proper interpretation of reg 1.05A of the Migration Regulations 1994 (Cth) - whether the primary judge was in error in not finding jurisdictional error by the Tribunal - whether the Tribunal misconstrued the statutory provisions - whether the Tribunal failed to have regard to evidence of the appellant's dependence on her son - whether the Tribunal's adverse findings lacked an evident and intelligible justification - whether the Tribunal's decision was legally unreasonable - where the Tribunal failed to discharge the statutory task - appeal allowed
Legislation:
Migration Regulations 1994 (Cth) regs 1.05A, 1.10A, 1.12, 1.15A, Schedule 2 cl 187.311
Cases cited:
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175
Fernandez v Minister for Immigration and Border Protection [2015] FCCA 1698
Fernandez v Minister for Immigration and Border Protection [2015] FCA 1265; (2015) 238 FCR 251
Hembury v Chief of the General Staff [1998] HCA 47; (1998) 193 CLR 641
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14; (2009) 239 CLR 458
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53
Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116
Date of hearing:
31 May 2019
Registry:
Western Australia
Division:
General Division
National Practice Area:
Administrative and Constitutional Law and Human Rights
Category:
Catchwords
Number of paragraphs:
53
Counsel for the Appellant:
Mr S Walker
Solicitor for the Appellant:
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- Case
- [2019] FCAFC 108
- Decision Date
CaseChat Overview and Summary
The court found that the Tribunal had failed to discharge its statutory task by not properly considering the evidence of Vo's dependence on their son. The court held that the Tribunal's decision was legally unreasonable as it lacked an evident and intelligible justification. The court concluded that the primary judge was in error for not finding a jurisdictional error in the Tribunal's decision. The appeal was allowed, and the decision of the Federal Circuit Court was set aside. The matter was remitted to the Federal Circuit Court for determination according to law. The appellant's costs of the appeal and the proceedings in the Federal Circuit Court were to be paid by the first respondent. If necessary, the costs of the appeal would be assessed on a lump sum basis. The appellant could file and serve an affidavit constituting a Costs Summary, and the first respondent could file and serve any costs proposal within 14 days of service of the Costs Summary. If either party requested a determination of an appropriate lump sum figure, the matter would be referred to a Registrar for determination of the lump sum.
Orders
Orders of the court
1. The appeal be allowed.
2. The decision of the Federal Circuit Court made on 5 December 2018 concerning the appellant's application for review by the second respondent made on 20 September 2016 be set aside and the matter be remitted to the second respondent for determination according to law.
3. The appellant's costs of the appeal and of the proceedings in the Federal Circuit Court be paid by the first respondent to be assessed if not agreed.
4. The costs of the appeal be assessed on a lump sum basis if not agreed.
5. If it is necessary to fix costs then:
(a) the appellant may file and serve an affidavit constituting a Costs Summary in accordance with the Court's Cost Practice Note (GPN-COSTS);
(b) within 14 days of service of the Costs Summary the first respondent do file and serve any costs proposal in accordance with GPN-COSTS; and
(c) if either party thereafter requests a determination of an appropriate lump sum figure then the matter shall be referred to a Registrar for determination of the lump sum.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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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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