FEDERAL COURT OF AUSTRALIA

Townsend v Minister for Immigration and Multicultural Affairs

[2001] FCA 492

MIGRATION – No evidence of fact upon which decision in part based – sufficient reason to set aside decision.

Administrative Appeals Tribunal Act 1975 (Cth)  s 44(1)

Migration Act 1958 (Cth)  s 200

Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1997) 97 FCR 513

PHILLIP CORREY TOWNSEND v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Q129 OF 2000

COOPER J

BRISBANE

20 APRIL 2001

THE COURT ORDERS THAT:

1.                  The decision of the Administrative Appeals Tribunal given on 27 September 2000 be set aside and that the matter be remitted for re-hearing, before a differently constituted Tribunal, according to law.

2.                  The respondent pay the applicant’s costs of an incidental to the proceedings, including reserve costs, if any, to be taxed if not agreed.

REASONS FOR JUDGMENT

1                     This is an application under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) to set aside a decision of the Administrative Appeals Tribunal (“the AAT”) given on 27 September 2000 to affirm the decision of a delegate of the respondent ordering deportation of the applicant pursuant to s 200 of the Migration Act 1958 (Cth).

2                     The applicant relied upon a number of grounds as to why the decision should be set aside.  However, for present purposes it is sufficient to limit my consideration to one of those grounds.

3                     The applicant and Ms Veronica Hurst are the parents of four children who are Australian citizens.  The AAT, as it was required to do, had regard to the interests of these children when considering whether to affirm or set aside the decision to deport their father from Australia.  The AAT concluded :

“... It cannot be disputed that the children will suffer emotional hardship if the applicant is deported, particularly as their mother is not willing to take them to New Zealand until they are much older.  However, the applicant has been living away from his children for nearly four years already.  His former wife is now in a stable relationship so the children are a part of a new family unit.  The children do not rely on their father for financial support or their day-to-day care. ...”

4                     The applicant contends that the AAT erred in making this finding because there was no evidence that the applicant’s former wife had entered into a stable relationship so that the children were part of a new family unit.

5                     An absence of evidence to support such a finding would constitute an error of law.

6                     I have been unable to find any evidence to support this finding and the respondent has today conceded before me that there is no such evidence.  I am satisfied that the error of law has been made out by the applicant.

7                     The finding was an important element in considering the interests of the children and the reasoning of the AAT which led to its decision.  The error could have affected the outcome of the case.  That is a sufficient reason to order the decision of the AAT be set aside:  see Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1997) 97 FCR 513 at 519.

8                     The matter will be remitted for re-hearing by the AAT according to law and these reasons.

9                     Having regard to the conclusions previously reached by the AAT, it should be differently constituted on the rehearing.

Associate:

Dated:              20 April 2001