Cheung v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 122

Cheung v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 122

The Tribunal and the primary judge erred in law by failing to consider whether the appellant and his wife together had net assets of not less than AUD 200,000 in a qualifying business, as required by the proper construction of subclause 840.213(2)(a); it was wrong to treat the fact that the property was in the wife's name as of itself excluding it from consideration.

Jurisdiction
Australia
Judgment Date
01 July 2005
Procedural Posture
Appeal / Judgment on Appeal From Single Judge to Full Court
Outcome
appeal allowed
Legal Topics
['business Skills Visa' 'construction of Migration Regulations' 'qualifying Business Assets']
['migration Law' 'administrative Law'] ['business Skills Visa' 'construction of Migration Regulations' 'qualifying Business Assets']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal From Single Judge to Full Court

Legal Issues

  1. 1 ["Whether property solely owned by applicant's spouse but used to secure business facilities is a 'net asset' in a qualifying business for Migration Regulations 1994, sub-clause 840.213(2)(a) purposes" 'Whether Tribunal erred in construction and application of the criterion in the Regulations']

Ratio Decidendi

The Tribunal and the primary judge erred in law by failing to consider whether the appellant and his wife together had net assets of not less than AUD 200,000 in a qualifying business, as required by the proper construction of subclause 840.213(2)(a); it was wrong to treat the fact that the property was in the wife's name as of itself excluding it from consideration.

Court Disposition

appeal allowed

Orders

  • ['The appeal be allowed and the orders of the primary judge of 23 December 2004 set aside.' 'The decision of the Tribunal given on 1 March 2004 affirming the refusal of visas be set aside, and the matter remitted to the Tribunal for consideration according to law.' 'The second respondent to pay the costs of the...