Lamb v Minister for Immigration & Multicultural Affairs [2000] FCA 1226

FEDERAL COURT OF AUSTRALIA

Lam v Minister for Immigration & Multicultural Affairs [2000] FCA 1226 MIGRATION – judicial review of a decision of the Minister under s 501A(2) of the Migration Act 1958 (Cth) to refuse to grant the applicant a Class 812 Transitional (Permanent) Visa – delegate of the Minister had earlier decided to refuse to grant the visa under s 501 on the ground that the applicant, who had been convicted and sentenced to nine years and four months imprisonment for possession of heroin, was not a person of good character and therefore could not satisfy criterion 4001 of the Migration (1993) Regulations – the Administrative Appeals Tribunal ultimately set aside that decision, substituted a finding that the applicant did meet the requirements of criterion 4001 and remitted the matter to the delegate for consideration of the remaining criteria for the grant of the visa – the Minister then exercised his power under s 501A(2) to refuse to grant the visa on the ground that the Minister suspected that the applicant did not pass the character test in s 501 and the applicant had not satisfied the Minister that he did, and because the refusal of the visa was in the national interest – whether the Minister lacked jurisdiction to make the decision under s 501A – whether it could be said that the Tribunal had made a decision, within the meaning of s 501A(1)(c), "to grant a visa to a person as a result of not exercising the power conferred by subsection 501(1) to refuse to grant a visa to the person" – whether a literal construction of s 501A(1)(c) would produce a result that is absurd and at odds with the apparent object of the provision – whether the words would bear an alternative construction which would give effect to the apparent object of the provision Migration Act 1958 (Cth), s 476(1)(b) and (c), s 501, s 501A Migration (1993) Regulations, Sch 2 Item 812.736(1), Sch 4 criterion 4001 Administrative Appeals Tribunal Act 1975 (Cth), s 43(1) Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32, considered Department of Social Security v Ridley (1992) 40 FCR 43, referred to Occidental Life Insurance Company of Australia Ltd v Life Style Planners Pty Ltd (1992) 38 FCR 444, referred to Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565, referred to Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107, referred to Connections 2000 Pty Ltd and Minister for Immigration and Multicultural Affairs [1999] AATA 357, considered Ross and Minister for Immigration and Multicultural Affairs [1999] AATA 965, considered Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513, referred to Tutugri v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 592, referred to KWONG LEUNG LAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 710 OF 2000 LEHANE J 1 SEPTEMBER 2000 SYDNEY