Chen v Minister for Immigration - [2013] FCCA 939

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHEN v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 939

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:
Federal Circuit Court Rules 2001 (Cth)

Migration Regulations 1994 (Cth)

Applicant:

QIANG CHEN

First Respondent:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 527 of 2013

Judgment of:

Judge Driver

Hearing date:

25 July 2013

Delivered at:

Sydney

Delivered on:

25 July 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms A Carr
DLA Piper

INTERLOCUTORY ORDERS

The name of the first respondent be amended to the Minister for Immigration, Multicultural Affairs and Citizenship.
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,700.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 527 of 2013

QIANG CHEN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application filed on 15 March 2013 seeking review of a decision of the Migration Review Tribunal (Tribunal). The Tribunal made its decision orally on 20 February 2013. The Tribunal’s written statement of reasons was prepared on the same day and certified on behalf of the Tribunal’s District Registrar the following day. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Chen, a temporary student visa.
The following statement of background facts relating to this matter is derived from the Minister’s outline of submissions filed on 18 July 2013.
Mr Chen is a citizen of People's Republic of China (China) born on 26 June 1991.[1] He arrived most recently in Australia on 27 February 2012.
[1] Court Book (CB) 1.
Mr Chen applied for a Student (Temporary) (Class TU) visa on 25 March 2011.[2] In that application Mr Chen indicated that he intended to study years 11 and 12 at Sydney Jacaranda College beginning on 14 March 2011 and ending on 18 November 2012. Mr Chen also indicated that he had attached evidence of his enrolment to the application form.[3] The application was refused on 22 July 2011.[4]
[2] CB 1-17.
[3] CB 5.
[4] CB 24-28.
Mr Chen applied to the Tribunal for review of the delegate's decision on 15 August 2011.[5]
[5] CB 29-37.
On 29 January 2013, the Tribunal wrote to Mr Chen inviting him to appear before it at a scheduled hearing on 20 February 2013.[6] The letter also invited Mr Chen to provide a certificate of enrolment as required by clause 571.222 of Schedule 2 to the Migration Regulations 1994 (Cth), or evidence that he was enrolled in, or was the subject of a current offer of enrolment, in a registered course.

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: [2013] FCCA 939
Decision Date: 25 July 2013

CaseChat Overview and Summary

In the Federal Court of Australia, Justice Driver considered the application of Mr. Chen for judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's refusal to grant Mr. Chen a visa, a decision that Mr. Chen sought to have set aside.

The central legal issue before the Court was whether the delegate of the Minister had erred in law by failing to consider relevant considerations and by taking into account irrelevant considerations when assessing Mr. Chen's visa application. Specifically, the Court was asked to determine if the delegate's assessment of Mr. Chen's character and the weight given to certain information were legally sound.

Justice Driver's reasoning focused on the principles of administrative law, particularly the requirement for decision-makers to consider all relevant factors and disregard irrelevant ones. The Court examined the evidence before the delegate and the reasons provided for the refusal, concluding that the delegate had indeed failed to properly consider certain aspects of Mr. Chen's submission and had given undue weight to other information that was not directly relevant to the assessment criteria. The Court found that this failure constituted a jurisdictional error.

Consequently, Justice Driver ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders