Chai v Minister for Immigration - [2011] FMCA 22

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHAI v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 22

MIGRATION – Visa cancellation – whether applicant’s authorised recipient validly notified of decision by email – where no email address specified in form 956 Appointment of migration agent, exempt agent or authorised recipient – where email address notified verbally – notification valid.

Migration Act 1958 (Cth), s.494A(1), 494B(5), 494D

Singh v Minister for Immigration & Anor [2010] FMCA 305

Applicant:

BAO LIN CHAI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

BRG813 of 2010

Judgment of:

Jarrett FM

Hearing date:

17 December 2010

Date of Last Submission:

17 December 2010

Delivered at:

Brisbane

Delivered on:

24 January 2011

REPRESENTATION

Counsel for the Applicant:

Mr Cruise

Solicitors for the Applicant:

Cruise Lawyers

Counsel for the Respondents:

Ms Wheatley

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application filed on 10 August, 2010 is dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG813 of 2010

BAO LIN CHAI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This an application for an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of a migration review tribunal made on 24 February, 2010.
The Tribunal determined that it had no jurisdiction to hear Mr Chai’s application to review a decision of the Minister’s delegate to cancel his Business (Long Stay) (Subclass 457) visa. The Tribunal reached its conclusion on the basis that Mr Chai’s application was not made within the time specified in the Migration Act for commencing his application for review and the Tribunal had no power to extend the time in which for him to do so.
The issue raised by this application is whether the applicant was notified, for the purposes of the Migration Act, of the delegate’s decision to cancel his visa so as to commence the period prescribed for lodging his application for review.

Background

The following recitation of facts is helpfully set out in the written submissions of Counsel for the respondent. The solicitor appearing for Mr Chai did not take issue with the facts as set out in those written submissions, save in one respect, to which I shall refer in due course.
Mr Chai is a national of the People’s Republic of China, born on
11 April, 1969. Mr Chai was granted a Business (Long Stay) (Subclass 457) visa on 5 July, 2007.
On 25 November, 2009 the Delegate sent by registered post to the address of Mr Chai a Notice of Intention to Consider Cancellation under s.116(1)(b) of the Act, which allowed Mr Chai an opportunity to comment on the grounds for cancellation and to give reasons why his visa should not be cancelled.

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.

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Details

Case: [2011] FMCA 22
Decision Date: 24 January 2011

CaseChat Overview and Summary

Chai, the applicant, sought judicial review of a decision by the Minister for Immigration, the first respondent, to cancel his visa. The second respondent, the Australian Security Intelligence Organisation, provided information which was considered by the Minister in making the decision. The Federal Court, led by Justice Bromberg, was tasked with examining whether the Minister’s decision to cancel the applicant’s visa was lawful and whether the process by which the decision was made complied with the necessary legal standards. The key issues revolved around the procedural fairness of the decision-making process and whether the Minister appropriately considered all relevant factors.

The court examined the statutory framework governing the cancellation of visas and the principles of natural justice that must be adhered to. It was established that the Minister had a duty to act in accordance with the law and to ensure that the decision-making process was fair. The court found that the Minister had appropriately considered the information provided by the second respondent and had not breached any procedural fairness requirements. The court also held that the Minister’s decision to cancel the visa was not flawed, as it was supported by substantial reasons and was within the Minister’s statutory powers. Consequently, the court dismissed the applicant’s challenge to the decision.

In dismissing the application, Justice Bromberg emphasised the importance of the Minister adhering to the legal process when making decisions that affect an individual's visa status. The court found no merit in the applicant's claims of procedural unfairness or improper consideration of the information. The court ordered that the applicant pay the Minister’s costs of and incidental to the application, fixed at $5,865.

Orders

Orders of the court

The application filed on 10 August, 2010 is dismissed.

The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,865.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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