Carlos v Minister for Immigration & Multicultural Affairs [2001] FCA 1087

Carlos v Minister for Immigration & Multicultural Affairs [2001] FCA 1087

The appeal failed because, on the Tribunal's findings, Margaux Carlos remained a member of and resided with the family unit with which she first entered Australia, whether or not her father was included in that unit at the time of entry; geographic separation did not prevent a single family unit and later additions...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
09 August 2001
Procedural Posture
Migration Appeal Concerning a Change in Circumstance (residence) Visa / Appeal From Judgment of Merkel J in the Federal Court
Outcome
Appeal dismissed with costs.
Legal Topics
['change in Circumstance (residence) Visa' 'family Unit Under Migration Regulations' 'jurisdictional Error' 'procedural Fairness Before the Migration Review Tribunal' 'disclosure of Information Under S 359 a of the Migration Act 1958' 'access to Written Material Under S 362 a of the Migration Act 1958' 'federal Court Appellate Procedure']
['migration Law' 'administrative Law'] ['change in Circumstance (residence) Visa' 'family Unit Under Migration Regulations' 'jurisdictional Error' 'procedural Fairness Before the Migration Review Tribunal' 'disclosure of Information Under S 359 a of the Migration Act 1958' 'access to Written Material Under S 362 a of the Migration Act 1958' 'federal Court Appellate Procedure']

Source-derived case record

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Procedural Posture

Migration Appeal Concerning a Change in Circumstance (residence) Visa / Appeal From Judgment of Merkel J in the Federal Court

Legal Issues

  1. 1 ['Whether the Migration Review Tribunal fell into jurisdictional error in deciding that Margaux Carlos remained a member of, and resided with, the family unit with which she first entered Australia for cl 833.221 of Schedule 2 of the Migration Regulations.' "Whether an addition to a family unit, including the presence of Margaux's father and the birth of Paolo, meant there was a different family unit for the purposes of cl 833.221." "Whether the Tribunal was required to investigate whether Margaux's parents were separated in a marital as well as geographic sense when Margaux entered Australia." 'Whether a legal comment or internal memorandum about the interpretation and application of cl 833.221 was "information" requiring disclosure and an invitation to comment under s 359A of the Migration Act 1958.' 'Whether Andrew\'s memorandum was "written material" given or produced to the Tribunal for the purposes of the review so as to require access under s 362A(1) of the Migration Act 1958.' "Whether the respondent could obtain a variation of Merkel J's costs decision by notice of contention without filing a cross-appeal."]

Ratio Decidendi

The appeal failed because, on the Tribunal's findings, Margaux Carlos remained a member of and resided with the family unit with which she first entered Australia, whether or not her father was included in that unit at the time of entry; geographic separation did not prevent a single family unit and later additions to the family did not create a different family unit. The internal memorandum relied on by the appellants was legal comment on assumed facts, not new factual information requiring disclosure under s 359A, and it was not written material to which access had to be given under s 362A. Accordingly the Tribunal committed no jurisdictional or procedural error.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' 'The appellants pay the costs incurred by the respondent in connection with the appeal.']