Lukac v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1641

FEDERAL COURT OF AUSTRALIA

Lukac v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1641

MIGRATION – Temporary Business Entry (Class UC) visa – cleaning business – whether net assets adequate to conduct the business – Tribunal failed to ask itself the correct question – jurisdictional error Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) s 475A Migration Regulations Schedule 2, subclause 457.223(7A) Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 followed Scargill v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 259 followed Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 referred to Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 followed NENAD LUKAC, IVANA LUKAC, MARKO LUKAC, ANA LUKAC, RATKA LUKAC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and MIGRATION REVIEW TRIBUNAL No QUD 176 of 2004 SPENDER J BRISBANE 13 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 176 OF 2004

BETWEEN: NENAD LUKAC, IVANA LUKAC, MARKO LUKAC, ANA LUKAC, RATKA LUKAC

APPLICANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFAIRS

FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: SPENDER J

DATE OF ORDER: 13 DECEMBER 2004

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: (1) The appeal is allowed. (2) The decision of the Migration Review Tribunal is set aside. (3) The matter is remitted to the Migration Review Tribunal to be considered according to law. (4) The composition of the Migration Review Tribunal is a matter for the Migration Review Tribunal. (5) The first respondent pay the applicant's costs of and incidental to this application, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.