Tran v Minister for Immigration & Multicultural Affairs [2006] FCA 1229

FEDERAL COURT OF AUSTRALIA

Tran v Minister for Immigration & Multicultural Affairs [2006] FCA 1229

ADMINISTRATIVE LAW – MIGRATION – judicial review – determination of Migration Review Tribunal – refusal of grant of business skills visa - whether determination by tribunal irrational, illogical or not based on findings or inferences of fact supported by logical grounds - jurisdictional error vitiating decision – discretion of courts and matters precluding relief - remission to Tribunal – potential for futility MIGRATION – review of decisions – decision Migration Review Tribunal – refusal of grant of business skills visa – visa grant criteria – misconstruction or misapplication of, or failure to apply – assessment according to departmental policy as assessment for the purposes of visa grant criteria – policy narrower than visa grant criteria – jurisdictional error vitiating decision – Migration Regulations 1994 (Cth), Sch 2, cl 845.216 – application of business skills points test – whether Tribunal erred in application of points test – Migration Regulations 1994 (Cth) Sch 2 cll 845.21 and 845.22 Held – jurisdictional error found in application of policy which was expressed in terms not justified by cl 845.216 of Sch 2 of the Migration Regulations; that it would not be futile to remit the matter back to the Tribunal despite no error being found in Tribunal's finding that applicant had not satisfied points test; appeal allowed and proceedings remitted to the Tribunal

Migration Act 1958 (Cth) s 65(1)(a) s 368 Migration Regulations 1994 (Cth) Sch 2, cll 845.21, 845.216, 845.22

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411 applied Associated Provincial Picture Houses Ltd v Wednesbury Corporations [1948] 1 KB 223cited Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24cited Australian Communist Party v The Commonwealth (1951) 83 CLR 1applied Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353applied Kumaraperu v Minister for Immigration (1998) 88 FCR 381 cited Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 considered and followed Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 applied Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518discussed and applied Minister for Immigration v SGLB (2004) 207 ALR 12applied Minister for Immigration v Yusuf (2001) 206 CLR 323 applied Norbis v Norbis (1986) 161 CLR 513considered Peng v Minister for Immigration (2000) 105 FCR 63cited Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 followed R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Ltd (1953) 88 CLR 100applied Re Minister for Immigration and Multicultural Affairs Ex parte Durairajasingham (2000) 74 ALJR 405considered Re Minister for Immigration and Multicultural and Indigenous Affairs Ex parte Applicant S20/2002 (2003) 198 ALR 59applied Re Minister for Immigration and Multicultural and Indigenous Affairs Ex parte Palme (2003) 216 CLR 212cited SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 applied Stead v State Government Insurance Commission (1986) 161 CLR 141 applied SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214applied SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 applied THIEN NGHE TRAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND MIGRATION REVIEW TRIBUNAL NSD 535 OF 2006