Le v Minister for Immigration and Border Protection [2019] FCA 427

Le v Minister for Immigration and Border Protection [2019] FCA 427

The Tribunal was required to consider the whole of Form eM1 and the uploaded documents, not merely the boxes headed 'Details of person applying for review', when deciding whether the application was made by the non-citizen for the purposes of s 347(2)(a). Read as an integrated whole, the form identified Ms Le, the primary visa applicant and non-citizen subject of the s 338(2) decision, as the person in truth and substance making the review application, notwithstanding that the sponsor's details appeared in one section. The application was therefore properly made under s 347 and engaged the Tribunal's review jurisdiction under s 348.

Jurisdiction
Australia
Judgment Date
27 March 2019
Procedural Posture
Migration Appeal From Federal Circuit Court Judicial Review Dismissal / Appeal to the Federal Court of Australia
Outcome
Appeal allowed.
Legal Topics
['part 5 Reviewable Decisions' 'validity of Application for Merits Review' 'approved Forms and Substantial Compliance' 'jurisdiction of the Administrative Appeals Tribunal']
['migration Law' 'administrative Law' 'statutory Interpretation'] ['part 5 Reviewable Decisions' 'validity of Application for Merits Review' 'approved Forms and Substantial Compliance' 'jurisdiction of the Administrative Appeals Tribunal']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court Judicial Review Dismissal / Appeal to the Federal Court of Australia

Legal Issues

  1. 1 ["Whether the appellant had made an application for review of the Minister's delegate's decision having regard to s 338(2) and ss 347 and 348 of the Migration Act 1958 (Cth)." "Whether the Tribunal erred by treating the review application as invalid because the sponsor's details were entered under the form heading for the person applying for review." 'Whether the application form had to be read as a whole, including attached documents, to determine who made the application for review.']

Ratio Decidendi

The Tribunal was required to consider the whole of Form eM1 and the uploaded documents, not merely the boxes headed 'Details of person applying for review', when deciding whether the application was made by the non-citizen for the purposes of s 347(2)(a). Read as an integrated whole, the form identified Ms Le, the primary visa applicant and non-citizen subject of the s 338(2) decision, as the person in truth and substance making the review application, notwithstanding that the sponsor's details appeared in one section. The application was therefore properly made under s 347 and engaged the Tribunal's review jurisdiction under s 348.

Court Disposition

Appeal allowed.

Orders

  • ['The appeal is allowed.' 'The orders of the Federal Circuit Court of Australia in Proceeding No. BRG 27 of 2017 made on 9 October 2017 be set aside and, in lieu thereof, constitutional writs issue quashing the decision of the second respondent and remitting the application of Thi Xuan Nga Le to the second...