Bustescu v Minister for Immigration & Multicultural Affairs [1999] FCA 1713

FEDERAL COURT OF AUSTRALIA

Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713 MIGRATION – Deportation – Ministerial Direction – Whether Direction fettered decision-maker's discretion – Whether Administrative Appeals Tribunal ("AAT") misapplied Direction – Whether AAT made findings on material questions of fact. D Pearce and S Argument, Delegated Legislation in Australia (2nd ed 1999). Migration Act 1958 (Cth), ss 200, 201, 253(1), 253(2), 253(8), 499, 500(1)(a). Administrative Appeals Tribunal Act 1975 (Cth), ss 41(1), 43(2B), 44. Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1, cited. Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238, distinguished. Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, considered. Howells v Nagrad Nominees Pty Ltd (1982) 43 ALR 283, cited. NCA (Brisbane) Pty Ltd v Simpson (1986) 13 FCR 207, cited. Hong v Minister for Immigration and Multicultural Affairs [1999] FCA 1567, followed. East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 90 ALR 457, considered. Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402, followed. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited.

DAN IONEL BUSTESCU V minister for immigration and multicultural affairs N 1100 OF 1999 JUDGE: SACKVILLE J DATE: 10 DECEMBER 1999 PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1100 OF 1999

BETWEEN: DAN IONEL BUSTESCU

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE OF ORDER: 10 DECEMBER 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The decision of the Administrative Appeals Tribunal ("AAT") made on 1 September 1999 be set aside. 2. The matter be remitted to the AAT, differently constituted, to be determined according to law. 3. The respondent pay the applicant's costs of the proceedings.