Chen v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHEN v MINISTER FOR IMMIGRATION [2005] FMCA 1000

MIGRATION – Review of decision of MRT – where a letter sent to the applicant did not have the name and address of the applicant at the top of the page – where the letter failed to comply with the form required under section 379A(4)(ii) – whether the Tribunal has discretion to send forms and information to the applicant instead of the authorised recipient – whether these requirements are mandatory requirements.

Migration Act 1958, ss.379A, 379G, 359A, 379A(4)(ii), 379A(4)(c)(i), 379G(2), 479A(4)(c)(ii), 379G(iv), 359C
Federal Magistrates Court Rules 2001

Applicant VEAN of 2002 v Minister for Immigration  [2003] FCAFC 11
Makhu v The Minister [2004] FCA 221
SAAP and Anor v The Minister [2005] HCA 24

Applicant: YU CHEN CHEN

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2055 of 2003

Judgment of: Raphael FM

Hearing date: 14 July 2005

Date of Last Submission: 14 July 2005

Delivered at: Sydney

Delivered on: 14 July 2005

REPRESENTATION

Solicitor for the Applicant: Mr Nigel Dobbie  of Parish Patience Immigration Lawyers

Counsel for the Respondent: Mr Geoffrey Kennett

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The decision of the MRT is invalid and of no effect

2. The application for review be referred back to the Tribunal to be heard and decided in accordance with law

3. The respondent to pay the applicant's costs in the sum of $4000

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2055 of 2003

YU CHEN CHEN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This proceeding involves a consideration of the provisions of section 379A and 379G of the Migration Act as a primary or preliminary point. The applicant came to Australia as a student, he was not particularly successful in that role. His educational establishment put in train the procedures for a cancellation of his visa. His visa was cancelled by the delegate on 26 May 2003. The applicant applied for review of that decision from the Migration Review Tribunal. In the form, found to commence at CB17 and conclude at CB21, the applicant gives his name and his residential address. At CB18 he gives the name of his representative. The form states under section 4:

   “The following details should be provided if you wish to have a representative assist you with this application and you wish them to receive all correspondence in relation to your application. As an authorised recipient pursuant to section 379(2) of the Migration Act any correspondence given to your representative by the Tribunal will be taken to have been given to you.”

   The applicant then names a Ms Kitty Kwong and gives an address for her. The Tribunal had some concerns that it wished the applicant to respond to and on 24 July 2003 it sent a letter pursuant to the provisions of section 359A of the Migration Act inviting the applicant to comment in writing on certain…