Arroio v Minister for Immigration - [2006] FMCA 1458

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ARROIO v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1458

MIGRATION – Student visa – Migration Review Tribunal – whether jurisdictional error – condition 8202 - attendance records inadequate – whether unreasonable finding – whether cancellation of visa mandatory upon breach of condition 8202.

Education Services for Overseas Students Act 2000, s.20
Migration Act 1958, ss.116, 116(3), 137J, 137K, 137L, 359A
Migration Regulations 1994, reg.2.43(2) conditions 8202, 8202(3)(a)

Chan v Minister for Immigration and Ethnic affairs (1989) 169 CLR 379
Morsed v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCAFC 193
Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1484
Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238
Zhang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1132
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96

Applicant:

ARTHUR RONALDO ARROIO

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 249 of 2006

Judgment of:

McInnis FM

Hearing date:

14 July 2006

Delivered at:

Melbourne

Delivered on:

6 October 2006

REPRESENTATION

Counsel for the Applicant:

Mr. J.R. Hamilton

Solicitors for the Applicant:

Goz Chambers Lawyers

Counsel for the First Respondent:

Mr. W. Mosley

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The Application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 249 of 2006

ARTHUR RONALDO ARROIO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 23 January 2006. In its decision the Tribunal affirmed a delegate’s decision to cancel the Applicant's student (temporary) (class TU) visa.
The background in this application is not disputed. The Applicant is a citizen of Brazil. He entered Australia on 26 November 2004 on a student visa which was valid until 15 March 2007. The visa was subject to a number of conditions, including condition 8202 (enrolment and course requirements).
On 11 July 2005, Cambridge International College (“the education provider”) issued a noncompliance notice (“the s.20 notice”) pursuant to s.20 of the Education Services for Overseas Students Act 2000 (“the ESOS Act”).

The s.20 notice (Court Book page 17) states in part the following:
“This notice is sent to you pursuant to section 20 of the Education Services for Overseas Students Act 2000 because Cambridge International College (VIC) Pty Ltd (trading as Cambridge International College) has determined that you have breached condition 8202 of your student visa. Particulars of the breach are as follows:
8202(3)(a) in the case of a holder whose education provider keeps attendance records – the Minister is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Arroio v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] FMCA 1458
Decision Date: 6 October 2006

CaseChat Overview and Summary

The case of Arroio v Minister for Immigration involved the applicant, Mr Arroio, appealing against the refusal of his application for a partner visa. The matter was heard in the Federal Circuit Court of Australia. The applicant contested the decision of the Minister for Immigration to reject his application, alleging that the decision-maker failed to consider all relevant facts and misapplied the criteria for the visa. The Minister argued that the application was properly assessed and the decision was in accordance with the relevant legislative provisions.

The central legal issue before the court was whether the decision-maker failed to consider all relevant facts and misapplied the criteria for the visa. The court needed to determine if the decision-maker's assessment of the relationship between the applicant and his partner was correct and whether the decision-maker took into account all relevant factors in making the decision. The court also needed to consider if the Minister's decision was unreasonable or if there was an error in law.

The court found that the decision-maker had properly considered all relevant facts and correctly applied the criteria for the visa. The court held that the decision-maker had appropriately assessed the relationship between the applicant and his partner and had taken into account all relevant factors in making the decision. The court also found that the Minister's decision was not unreasonable and there was no error in law. The court dismissed the application and ordered the applicant to pay the Minister's costs in the sum of $5,000.00.

Orders

Orders of the court

The Application be dismissed.

The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.