Law v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1726

Law v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1726

The Tribunal’s error in finding that the applicant's representations were not made within time and thus that it lacked power to revoke the visa cancellation was material, as it did not actually decide the necessary question of whether there was 'another reason' to revoke the cancellation; therefore, the error was jurisdictional, and relief should be granted, setting aside the Tribunal’s decision and remitting the matter for fresh consideration.

Parties
Applicant: Kwok Lam Law; First Respondent: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; Second Respondent: Administrative Appeals Tribunal
Jurisdiction
Australia
Judgment Date
01 December 2020
Procedural Posture
Judicial Review / Federal Court Decision on Review of Administrative Appeals Tribunal Decision
Outcome
Application allowed
Legal Topics
Visa Cancellation, Character Grounds, Jurisdictional Error, Extension of Time, Materiality of Error
Migration Law Administrative Law Visa Cancellation Character Grounds Jurisdictional Error Extension of Time Materiality of Error

Case Brief

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Parties

Kwok Lam Law

Applicant

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

First Respondent

Administrative Appeals Tribunal

Second Respondent

Procedural Posture

Judicial Review / Federal Court Decision on Review of Administrative Appeals Tribunal Decision

Legal Issues

  1. 1 Whether the Tribunal made a jurisdictional error by holding it had no jurisdiction to review the decision not to revoke the visa cancellation
  2. 2 Whether the Tribunal’s error was material
  3. 3 Whether relief should be granted despite Tribunal’s opinion on the merits

Ratio Decidendi

The Tribunal’s error in finding that the applicant's representations were not made within time and thus that it lacked power to revoke the visa cancellation was material, as it did not actually decide the necessary question of whether there was 'another reason' to revoke the cancellation; therefore, the error was jurisdictional, and relief should be granted, setting aside the Tribunal’s decision and remitting the matter for fresh consideration.

Court Disposition

Application allowed

Orders

  • The decision of the second respondent dated 25 May 2020 is set aside.
  • The matter is remitted to the second respondent for determination in accordance with law.