Sok v Minister for Immigration and Citizenship [2007] FCA 413

FEDERAL COURT OF AUSTRALIA

Sok v Minister for Immigration and Citizenship [2007] FCA 413

MIGRATION – application for child visa – appeal from Federal Magistrates Court – whether Tribunal complied with obligations under s 360 – whether Tribunal misconstrued paragraph 101.213(1)(c) Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 referred to Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 cited SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 referred to Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 referred to Minister for Immigration and Multicultural and Indigenous Affairs v SZFDE [2006] FCAFC 142 referred to HUN CHEA SOK AND TOLA TANG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL VID 1221 OF 2006

KENNY J

22 MARCH 2007 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1221 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: HUN CHEA SOK

First Appellant

TOLA TANG

Second Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: KENNY J DATE OF ORDER: 22 MARCH 2007

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders made by the Federal Magistrate on 12 October 2006 be set aside, and in lieu thereof the Court orders that: (a) there be an order in the nature of certiorari to quash or set aside the decision of the Tribunal dated 16 February 2006; (b) there be an order in the nature of mandamus requiring the Tribunal, differently constituted, to review the decision of the delegate of the Minister to refuse a child (migrant) (class AH) subclass 101 (child) visa; and (c) the first respondent pay the costs of the appellants in the Federal Magistrates Court fixed in the sum of $5,000. 3. The first respondent pay the appellants' costs of the appeal fixed in the sum of $4,965. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA