Wan v Minister for Immigration & Multicultural Affairs [2001] FCA 568

FEDERAL COURT OF AUSTRALIA

Wan v Minister for Immigration & Multicultural Affairs [2001] FCA 568

MIGRATION – visa applicant found not to be of good character – discretion to refuse to grant visa – whether proper consideration given by Administrative Appeals Tribunal to the best interests of the applicant's children in reviewing the decision to refuse visa – requirement that the best interests of the children be a primary consideration – nature of "a primary consideration" – need to make finding as to the decision that would be in the best interests of the children – requirement for proper, genuine and realistic consideration of interests of the children Migration Act 1958 (Cth) ss 499, 501 Administrative Appeals Tribunal Act 1975 (Cth) s 43(2B) Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, followed Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608, applied LEI WAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1369 of 2000 BRANSON, NORTH and STONE JJ SYDNEY 18 MAY 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1369 of 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: LEI WAN

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: BRANSON, NORTH and STONE JJ

DATE OF ORDER: 18 MAY 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be allowed and the orders made at first instance be set aside. 2. In lieu of the orders set aside, the decision of the Administrative Appeals Tribunal made on 10 August 2000 be set aside; the respondent Minister pay the appellant's costs of the application; and the matter be remitted to the Tribunal differently constituted to be heard and determined again. 3. The respondent Minister pay the appellant's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.