Bae v Minister for Immigration & Multicultural Affairs [2001] FCA 578

Procedural Posture

Migration Judicial Review / Application Under Pt 8 of the Migration Act 1958 (cth) for Review of a Migration Review Tribunal Decision Affirming Refusal of a General (residence) (class As) Visa Sub Class 805

Legal Issues

1. 1 ['Whether the Migration Review Tribunal made an error of law in finding that the first applicant did not have an exceptional record of achievement as a welder for subclause 805.212(7)(a)(i).' "Whether the Tribunal incorrectly applied the law to the facts it had accepted concerning the applicant's exceptional competence in silver soldering and development of a steel grease interceptor device."]

Ratio Decidendi

The Tribunal accepted, when considering whether the applicant would be an asset to the Australian community, facts concerning his exceptional competence in silver soldering and development of a steel grease interceptor device as at the relevant date. In considering the separate criterion of exceptional record of achievement, the Tribunal appeared to disregard those same facts. That was an incorrect application of the law to the facts as found and therefore an error of law under s 476(1)(e).

Court Disposition

Decision under review set aside and application remitted to the Migration Review Tribunal differently constituted for reconsideration according to law; respondent ordered to pay the applicants' costs, including reserved costs.

Orders

• ['The decision under review is set aside.' 'The application under review is remitted to the Migration Review Tribunal differently constituted for reconsideration according to law.' "The respondent pay the applicant's costs, including reserved costs."]