Xu v Minister for Immigration, Citizenship and Multicultural Affairs

Case •

[2023] FedCFamC2G 856

•

31 October 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Xu v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 856

File number(s): SYG 940 of 2019
Judgment of: JUDGE GOODCHILD
Date of judgment: 31 October 2023
Catchwords: MIGRATION – related proceedings remitted the Administrative Appeals tribunal to be redetermined – the parties agree that this matter also be remitted- Orders made remitting proceedings to Tribunal to be redetermined
Legislation:  MigrationRegulations 1994 (Cth) 5.19, 187.223
Cases cited:  Australian Group Investment Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 823
Division: Division 2 General Federal Law
Number of paragraphs: 5
Date of hearing: 16 August 2023
Place: Sydney
Solicitor for the Applicant: Ms Anang of Christopher Levingston & Associates
Solicitor for the Respondents: Ms Frankel of Minter Ellison Lawyers

ORDERS

SYG 940 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

DAN XU
First Applicant

JUNMIN GAO
Second Applicant

TIANYAO GAO
Third Applicant
AND:

MINISTER FOR HOME AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:

JUDGE GOODCHILD

DATE OF ORDER:

31 OCTOBER 2023

THE COURT ORDERS THAT:

1.The first respondent’s name be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.A writ of certiorari issue quashing the decision of the second respondent made on 8 April 2019.

3.A writ of mandamus issue requiring the second respondent to re-hear the application for review according to law.

4.The first respondent to pay the scheduled costs of the applicant.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE GOODCHILD

REASONS

  1. This matter concerns an application for judicial review of a decision made on 8 April 2019 by the Administrative Appeals Tribunal (the Tribunal), the second respondent in these proceedings. These proceedings are related to the proceeding Australian Group Investment Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 823 (‘AGI’).

  2. In the Tribunal’s decision, it affirmed a decision made on 28 September 2017 by a delegate of the then Minister for Immigration and Border Protection to refuse to grant the Applicant a Regional Employer Sponsored (subclass 187) visa. The reason given by the delegate for refusing to grant the visa was because the nomination submitted by the nominee, Australian Group Investment Pty Ltd, had been refused which meant that this applicant’s visa cannot be approved.

  3. The parties to this proceeding agree that if the applicant in the related AGI proceedings succeeds, the Applicants in this proceeding must also succeed.

  4. At [65] of my reasoning in AGI, I determined that the matter be remitted to the Administrative Appeals Tribunal to be redetermined by the Tribunal on the ground of jurisdictional error.

  5. As such this matter should be remitted to the Administrative Appeals Tribunal to be redetermined by the Tribunal.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild.

Associate:

Dated:       31 October 2023

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