Chen v Minister for Immigration - [2011] FMCA 23

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHEN v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 23

MIGRATION – VISA – Business Visa – Class EA (subclass 132) (Business Talent) – application for judicial review of decision of Administrative Appeals Tribunal – decision by delegate to cancel visa – where applicant was secondary visa holder – whether notice under Migration Act 1958 (Cth) s. 135 can only be issued once the primary holder’s visa has been cancelled – where notice to the secondary visa holder when the primary visa holder’s visa had not been cancelled – whether the Tribunal erroneously took into account the situation of “many students” rather than the applicant’s personal circumstances – whether the Tribunal decision was unreasonable.

Migration Act 1958 (Cth), ss.65, 134, 135

Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
Zhong v Minister for Immigration and Citizenship (2008) 171 FCR 444
Lin and Minister for Immigration and Citizenship [2009] AATA 938
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367
Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481

Applicant:

TING CHEN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1719 of 2010

Judgment of:

Scarlett FM

Hearing date:

17 November 2010

Date of Last Submission:

17 November 2010

Delivered at:

Sydney

Delivered on:

25 January 2011

REPRESENTATION

Solicitor for the Applicant:

Dobbie and Devine Immigration Lawyers

Counsel for the First Respondent:

Mr Potts

Solicitor for the First Respondents:

Clayton Utz

Solicitors for the Second Respondents:

Phillip Kellow

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1719 of 2010

TING CHEN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision by the Administrative Appeals Tribunal made on 9^th July 2010 to affirm a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship, to cancel the applicant’s Class EA (subclass 132) (Business Talent) visa.
In his application, the applicant seeks the following:
i)A writ of certiorari directed to the second respondent, the Administrative Appeals Tribunal[1], quashing the Tribunal decision;
ii)A writ of mandamus directed to the second respondent requiring it to rehear and determine the applicants’ application according to law;
iii)A writ of prohibition preventing the first respondent, the Minister for Immigration and Citizenship, his servants and agents from acting upon or giving effect to the Tribunal decision;
iv)Other relief as appropriate; and
v)Costs.
[1] AAT
The applicant relies on the following ground:
The Tribunal misinterpreted the applicable law and misapplied the law to the facts.
The particulars are divided into three sections, marked A, B and C.
As to A, the applicant claims that the Tribunal misinterpreted and misapplied the law by finding that the cancellation of the Applicant’s visa…

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 23
Decision Date: 25 January 2011

CaseChat Overview and Summary

Chen v Minister for Immigration was a case where Mr Minhua Chen, a visa holder, had his visa cancelled, and the visas of his family members were also cancelled as a result. The Administrative Appeals Tribunal affirmed the delegate's decision to cancel the visas, and Mr Chen sought judicial review of the Tribunal's decision in the Federal Court. The primary legal issue was whether the delegate's decision to cancel the visas was in accordance with the Migration Act 1958 and whether the visas should not be cancelled because the applicants would suffer extreme hardship. The applicants argued that the visa cancellation of the primary visa holder was a condition precedent to issuing a notice to the secondary visa holders. However, the court found that the Tribunal's decision in Lin and Minister for Immigration and Citizenship was correct, and the cancellation of the primary visa holder's visa was not a pre-condition to issuing a notice to the secondary visa holders.

The court considered the relevant sections of the Migration Act and the decision in Zhong v Minister for Immigration and Citizenship, but ultimately found that the Tribunal's reasoning was correct in distinguishing that decision and rejecting the argument that the cancellation of the primary visa holder's visa is a pre-condition to issuing a notice to the secondary visa holders. The court held that the delegate's decision to cancel the visas was in accordance with the Migration Act, and the visas should be cancelled as there was no evidence of extreme hardship. The court dismissed the application and ordered that the applicant pay the first respondent's costs.

Orders

Orders of the court

The application is dismissed.

The applicant is to pay the first respondent’s costs.

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

That same day, the delegate wrote to the applicant, giving him notice that his visa had been cancelled. The letter stated (in part):The Migration Act 1958 (the Act) provides that where a person’s visa is cancelled under section 134 of the Act and another person holds a visa only because the person whose visa is cancelled a visa, then the Minister must cancel the other person’s visa by giving written notice. On 21 October 2009, Mr Minhua Chen’s visa was cancelled under section 134 of the Act. As you were granted a visa because Mr Minhua Chen was granted a visa, your visa must be cancelled:At the time of notifying both yourself and Mr Minhua Chen of my intention to consider cancellation of your visas, you were given the opportunity to make representations about whether you would suffer any extreme hardship as a result of having your visa(s) cancelled. As no representations about hardship were made, your visa(s) has been cancelled under section 134 of the Migration Act. A record of my decision is attached.[5][5] Court Book P6 On 1st February 2010, the applicant applied to the Administrative Appeals Tribunal for review of the delegate’s decision. The Tribunal heard the application, along with that of his father, mother and sister, on 28th June 2010 and handed down its decision on 9th July 2010, affirming the delegate’s decision. In its Reasons for Decision, the Administrative Appeals Tribunal defined the issues in relation to the applicant, his mother and his sister, as:i)whether the decisions to cancel their visas were made in accordance with the provisions of the Act; andii)whether their visas should not be cancelled because they will suffer extreme hardship as a result.[6] [6] Court Book P37 at paragraph 8 The applicants argued that it was a condition precedent to the valid exercise of the delegate’s power to issue a notice proposing to cancel the visas[7] held by the secondary visa holders, Mr Ting Chen, Ms Fan and Ms Chen, that the visa held by the primary visa holder, Mr Minhua Chen, had already been cancelled. The applicant relied on the decision of Lander J in Zhong v Minister for Immigration and Citizenship[8], which considered when a Notice under s 107 of the Act could be issued for the purposes of a cancellation under s 190 of the Act. Lander J held at [72]:In my opinion, s 107 is only engaged where the Minister, or relevantly a delegate of the Minister, has concluded that the holder of a visa has not complied with one of the sections or subsections mentioned in s 107(1). It is only in that case that the Minister or the delegate is entitled to give notice to the visa holder in accordance with that subsection. Section 107 is engaged because the minister, or a delegate of the Minister, has reached a state of mind where they consider that the holder of a visa has not complied with a relevant section.[9][7] A notice under the provisions of s 135 of the Migration Act [8] (2008) 171 FCR 444[9] (2008) 171 FCR 444 at [72] However, the Tribunal followed its own decision in Lin and Minister for Immigration and Citizenship[10], distinguishing the decision in Zhong v Minister for immigration and Citizenship and rejecting the argument that the cancellation of the visa holder’s visa is a pre-condition or a condition precedent to the issuing of a notice to the secondary visa holder under s 135 of the Act.[11] [10] [2009] AATA 938[11] Court Book P41 at [26] – [27]