Cole v Minister for Immigration and Border Protection [2018] FCAFC 66

Cole v Minister for Immigration and Border Protection [2018] FCAFC 66

The Tribunal and the Federal Circuit Court erred by treating "incapacitated for work" in reg 1.03(b)(ii) as requiring total incapacity. Properly construed by reference to text, context, purpose and supporting explanatory statements, the expression includes substantial incapacity for paid work. Because the Tribunal did not consider whether Ms Cole was substantially incapacitated for paid work and did not apply the required two-stage analysis of identifying her impairments and assessing their impact on capacity for paid work, the appeal had to be allowed.

Jurisdiction
Australia
Judgment Date
01 May 2018
Procedural Posture
Migration Child (residence) (class Bt) Subclass 802 Visa; Statutory Interpretation and Judicial Review / Appeal From the Federal Circuit Court of Australia Decision Dismissing a Re Amended Application for Review of the Tribunal's Decision Affirming Refusal of the Visa
Outcome
Appeal allowed.
Legal Topics
['child (residence) (class Bt) Subclass 802 Visa' 'dependent Child' 'incapacity for Work' 'substantial Incapacity for Work' 'two Stage Assessment of Incapacity' 'extrinsic Materials']
['migration Law' 'administrative Law' 'statutory Interpretation'] ['child (residence) (class Bt) Subclass 802 Visa' 'dependent Child' 'incapacity for Work' 'substantial Incapacity for Work' 'two Stage Assessment of Incapacity' 'extrinsic Materials']

Case Brief

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Procedural Posture

Migration Child (residence) (class Bt) Subclass 802 Visa; Statutory Interpretation and Judicial Review / Appeal From the Federal Circuit Court of Australia Decision Dismissing a Re Amended Application for Review of the Tribunal's Decision Affirming Refusal of the Visa

Legal Issues

  1. 1 ['Whether "incapacity for work" in reg 1.03(b)(ii) of the Migration Regulations 1994 (Cth) means only total incapacity or extends to substantial incapacity for paid work.' 'Whether the Tribunal failed to apply the correct two-stage process when assessing incapacity for work.']

Ratio Decidendi

The Tribunal and the Federal Circuit Court erred by treating "incapacitated for work" in reg 1.03(b)(ii) as requiring total incapacity. Properly construed by reference to text, context, purpose and supporting explanatory statements, the expression includes substantial incapacity for paid work. Because the Tribunal did not consider whether Ms Cole was substantially incapacitated for paid work and did not apply the required two-stage analysis of identifying her impairments and assessing their impact on capacity for paid work, the appeal had to be allowed.

Court Disposition

Appeal allowed.

Orders

  • ['The appeal be allowed.' "The first respondent pay the appellant's costs, to be assessed if not agreed."]