Chou v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 130 (29 July 2021) (Griffiths, Lee and Abraham JJ)


Catchwords:


MIGRATION – appeal from dismissal of judicial review application of two Administrative Appeals Tribunal (AAT) decisions affirming cancellation of first appellant’s visa under s 109 of Migration Act 1958 (Cth) and second appellant’s visa under s 140 – whether primary judge erred in holding no jurisdictional error in AAT finding that first appellant breached s 57 of Births, Deaths and Marriages Registration Act 1995 (NSW) (BDMR Act) – consideration of prescribed circumstance under s 109(1)(c) of Migration Act and reg 2.41(j) of Migration Regulations 1994 (Cth) – where non-biological parent of child recorded on birth certificate – meaning of “parent” in BDMR Act – where AAT failed to have regard to broad legal concept of parentage – whether error material – where prescribed circumstance is a mandatory relevant consideration for exercise of discretionary power – appealable error by primary judge in relation to both first and second AAT decisions – both AAT decisions set aside – review applications remitted to AAT for reconsideration

MIGRATION – whether AAT made adverse credibility findings based on misunderstanding of s 104 of Migration Act – whether AAT had power to cancel second appellant’s visa under s 140(2) of Migration Act