Chou v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 130

Federal Court of Australia

Chou v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 130 Appeal from: Chou v Minister for Immigration [2019] FCCA 2709

File number(s): NSD 1998 of 2019

Judgment of: GRIFFITHS, LEE AND ABRAHAM JJ

Date of judgment: 29 July 2021

Catchwords: MIGRATION – appeal from dismissal of judicial review application of two Administrative Appeals Tribunal (AAT) decisions affirming cancellation of first appellant's visa under s 109 of Migration Act 1958 (Cth) and second appellant's visa under s 140 – whether primary judge erred in holding no jurisdictional error in AAT finding that first appellant breached s 57 of Births, Deaths and Marriages Registration Act 1995 (NSW) (BDMR Act) – consideration of prescribed circumstance under s 109(1)(c) of Migration Act and reg 2.41(j) of Migration Regulations 1994 (Cth) – where non-biological parent of child recorded on birth certificate – meaning of "parent" in BDMR Act – where AAT failed to have regard to broad legal concept of parentage – whether error material – where prescribed circumstance is a mandatory relevant consideration for exercise of discretionary power – appealable error by primary judge in relation to both first and second AAT decisions – both AAT decisions set aside – review applications remitted to AAT for reconsideration MIGRATION – whether AAT made adverse credibility findings based on misunderstanding of s 104 of Migration Act – whether AAT had power to cancel second appellant's visa under s 140(2) of Migration Act

Legislation: Family Law Act 1975 (Cth) s 66X Migration Act 1958 (Cth) ss 78(1), 99, 100, 101(b), 104, 107, 108, 109(1), 111, 114(1), 115, 140, 359A, 360 Migration Regulations 1994 (Cth) rr 2.08, 2.41 Births, Deaths and Marriages Registration Act 1995 (NSW) ss 13, 14, 15, 16, 17(1), 18, 57, s 17 of Sch 1 Births, Deaths and Marriages Registration Regulation 2017 (NSW) rr 5(1)(d), 5(3) Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 (NSW) Sch 3 Status of Children Act 1996 (NSW) ss 9, 14, 15(1) Commonwealth, Parliamentary Debates, Senate, 16 March 2005, 3 (Christopher Ellison, Minister for Justice and Customs) Explanatory Memorandum, Family Law Amendment Bill 2005 (Cth)