Lee v Minister for Immigration and Citizenship [2009] FCA 977

Lee v Minister for Immigration and Citizenship [2009] FCA 977

Clause 892.214 was valid because the phrase "not generally acceptable in Australia" was capable of meaningful determination and required an evaluative judgment about whether the larger part, or most, of people in Australia would not approve of the business activities. The Tribunal did not misapply the clause because it did not rely only on unlawfulness; it found that the first appellant had an elaborate, prolonged and consistent history of involvement in business activities involving cash payments and avoidance of payroll tax, superannuation and workers' compensation obligations, which were likely to be offensive to a large section of the Australian population and were unlawful. The...

Jurisdiction
Australia
Judgment Date
28 August 2009
Procedural Posture
Migration Appeal Concerning Refusal of Business Skills (residence) (class Df) Subclass 892 Visas / Appeal From Orders of the Federal Magistrates Court Dismissing an Application to Review a Migration Review Tribunal Decision
Outcome
Appeal dismissed.
Legal Topics
['business Skills Visas' 'validity of Delegated Legislation' 'construction of Visa Criteria' 'jurisdictional Error' 'migration Review Tribunal']
['migration Law' 'administrative Law'] ['business Skills Visas' 'validity of Delegated Legislation' 'construction of Visa Criteria' 'jurisdictional Error' 'migration Review Tribunal']

Case Brief

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Procedural Posture

Migration Appeal Concerning Refusal of Business Skills (residence) (class Df) Subclass 892 Visas / Appeal From Orders of the Federal Magistrates Court Dismissing an Application to Review a Migration Review Tribunal Decision

Legal Issues

  1. 1 ['Whether cl 892.214 in Schedule 2 of the Migration Regulations 1994 (Cth) was invalid because it was overly wide, vague and uncertain.' 'Whether the Migration Review Tribunal misconstrued cl 892.214 by treating conduct that was unlawful as necessarily conduct that was not generally acceptable in Australia.' 'Whether the Federal Magistrate erred in dismissing the application for review of the Tribunal decision.']

Ratio Decidendi

Clause 892.214 was valid because the phrase "not generally acceptable in Australia" was capable of meaningful determination and required an evaluative judgment about whether the larger part, or most, of people in Australia would not approve of the business activities. The Tribunal did not misapply the clause because it did not rely only on unlawfulness; it found that the first appellant had an elaborate, prolonged and consistent history of involvement in business activities involving cash payments and avoidance of payroll tax, superannuation and workers' compensation obligations, which were likely to be offensive to a large section of the Australian population and were unlawful. The...

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.' 'The appellants pay the costs of the first respondent, to be taxed if not agreed.']