Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Cole v Minister for Immigration and Border Protection [2018] FCAFC 66 Appeal from: Cole v Minister for Immigration & Anor [2017] FCCA 2234
File number: WAD 482 of 2017
Judges: MCKERRACHER, BARKER AND RANGIAH JJ
Date of judgment: 1 May 2018
Catchwords: MIGRATION – Child (Residence) (Class BT) visa - appeal from the Federal Circuit Court – where "incapacity for work" in regulation 1.03 of the Migration Regulations 1994 (Cth) was construed by the primary judge as requiring total incapacity – whether "incapacity for work" encompasses total or substantial incapacity – whether incapacity for work ought to be assessed by the application of a two-stage process STATUTORY INTERPRETATION – consideration of the meaning of "incapacity for work" pursuant to regulation 1.03(b)(ii) for the purposes of assessing dependency and whether the appellant constituted a "dependent child" – consideration of extrinsic material where ambiguity – words "incapacitated" and "incapacitated for work" and "dependent" and "dependent child" Held: appeal allowed
Legislation: Acts Interpretation Act 1901 (Cth) s 15AB Disability Discrimination Act 1992 (Cth) s 4(1) Legislation Act 2003 Act 2003 (Cth) s 13(1)(a) Migration Act 1958 (Cth) Social Security Act 1947 (Cth) s 23 Migration Regulations 1994 (Cth) regs 1.03(b)(ii), 1.05A, 1.05A(1), cll 101.213(2), 802.212, 802.214, 802.221
Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Annas v Director-General of Social Security (1985) 8 FCR 49 Re Bolton; Ex parte Beane (1987) 162 CLR 514 Byrnes v Kendle (2011) 243 CLR 253 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Commissioner of Australian Federal Police v Curran (1984) 3 FCR 240 Gardner Smith Pty Ltd v Collector of Customs, Victoria (1996) 66 ALR 377 Huynh v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 576 Lacey v Attorney-General (Qld) (2011) 242 CLR 573 Minister for Immigration & Multicultural Affairs v Graovac [1999] FCA 1690 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Re Panke and Director-General of Social Services (1981) 4 ALD 179 Wilson v State Rail Authority (NSW) (2010) 78 NSWLR 704
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