Weng v Minister for Immigration and Citizenship (No 2)

The case of Weng v Minister for Immigration and Citizenship (No 2) involved a dispute regarding the cancellation of a business skills visa. The respondent, Mr Weng, appealed against the decision of the Administrative Appeals Tribunal (AAT) that affirmed the decision of the delegate to cancel his visa under section 134 of the Migration Act 1958 (Cth). The Federal Magistrates Court was tasked with determining whether the AAT had applied the correct statutory test, formed the correct opinion, and properly exercised its residual discretion to cancel the visa.

The central legal issues before the court were whether the AAT had correctly interpreted the statutory requirements of section 134 of the Act, whether it had properly assessed the concept of ‘genuine efforts’ in relation to obtaining a substantial interest in an eligible business, and if the AAT had exercised its residual discretion correctly. Additionally, the court needed to determine whether the property development activities of Mr Weng constituted a ‘business’ or an ‘eligible business’ as defined by the Act.

The Federal Magistrates Court found that the AAT had not erred in its assessment of the evidence or its conclusions. The court held that the AAT had correctly focused its inquiry on Mr Weng’s efforts outside of the property development, as it had determined that the property development did not qualify as a ‘business’ or an ‘eligible business’. The court rejected Mr Weng’s argument that the AAT had failed to give proper consideration to its discretion or that its decision was unreasonable. However, the court identified a new ground of appeal concerning the application of the wrong test by the AAT. It was argued that the AAT had not formed a positive opinion as required by section 134(1) of the Act, but rather, it had merely failed to be satisfied of the negative condition. The court found merit in this argument, concluding that there had been a jurisdictional error in the AAT’s approach to the application of section 134.

As a result, the appeal was allowed, and the matter was remitted to the AAT for reconsideration in light of the court’s findings. The court ordered that the parties submit written submissions or consent orders regarding the appropriate relief and costs within 14 days, with the outstanding issues to be determined on the papers.