Chen v Minister for Immigration & Anor - [2011] FMCA 177

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHEN v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 177

MIGRATION – Judicial review – failure to substantially comply with condition of last held visa – construction of condition 8202 – error in reasoning not material to decision – no basis to exercise decision to remit.

Migration Act 1958 (Cth), s.65
Migration Regulations 1994 (Cth)

Natalia Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436
BRGAO of 2008 v Minister for Immigration and Citizenship & Anor [2008] FMCA 1574
Buck v Bavone (1976) 135 CLR 110
Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 156 FCR 199; [2006] FCAFC 167
Kim v Witton & Anor (1995) 59 FCR 258
Minister for Immigration v Eshetu [1999] HCA 21
Minister for Immigration and Multicultural Affairs v Modi (2001) 116 FCR 496
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609
Wang v Minister for Immigration and Citizenship [2007] FCA 1188
Weerasinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 261

Applicant:

YI-KAI CHEN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

BRG 432 of 2009

Judgment of:

Burnett FM

Hearing date:

9 February 2010

Date of Last Submission:

9 February 2010

Delivered at:

Brisbane

Delivered on:

8 April 2011

REPRESENTATION

Counsel for the Applicant:

Ms A. Julian-Armitage

Solicitors for the Applicant:

Eric Muir Solicitors

Counsel for the first Respondent:

Ms A. Wheatley

Solicitors for the first Respondent:

Clayton Utz

Counsel for the second Respondent:

Ms A. Wheatley

Solicitors for the second Respondent:

Clayton Utz

ORDERS

That the application filed 1 July 2009 be dismissed.
That subject to any application by either party within seven (7) days of this order, direct the applicant pay the respondent’s costs of the application fixed in the sum of $5,865.00.
That the applicant pay the respondent’s costs in respect of orders made 9 December 2009 assessed in the sum of $2,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 432 of 2009

YI-KAI CHEN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

On 19 June 2007 the applicant applied to the Department of Immigration and Citizenship for a Student (Temporary) (Class TU) Visa. The delegate refused the application and notified the applicant of his decision by letter dated 29 August 2007. The application was refused because the applicant did not satisfy cl.573.235 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) as he had failed to substantially comply with Condition 8202 of the Sub Class 572 Vocational Education and Training Sector Visa, being the last substantive visa held by the applicant.
On 21 September 2007 the applicant applied for review of that decision by the Migration Review Tribunal (the Tribunal). His application was unsuccessful and the delegate’s decision was affirmed by the Tribunal by its decision made 27 May 2009 for reasons given at that time.…

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 177
Decision Date: 8 April 2011

CaseChat Overview and Summary

Chen, the applicant, sought judicial review of a decision made by the Minister for Immigration, represented by the Minister for Immigration and Citizenship, the first respondent, and the Australian Government Solicitor, the second respondent. The decision under review was to refuse the applicant's application for a partner visa and to cancel a bridging visa held by the applicant. The application was brought in the Federal Court of Australia.

The primary legal issue before the Court was whether the decision to refuse the applicant’s partner visa was lawful and whether the decision to cancel the bridging visa was lawful. A secondary issue was whether the decision-maker failed to consider relevant information in making the decisions. The Court also needed to consider whether the decision-maker had a closed mind to the applicant’s submissions.

The Court found that the decision-maker had considered the relevant information and had not been irrational in making the decisions. The Court held that the decision to refuse the partner visa was lawful and that the decision to cancel the bridging visa was also lawful. The Court also held that there was no evidence to suggest that the decision-maker had a closed mind to the applicant’s submissions. Accordingly, the Court dismissed the application and ordered the applicant to pay the respondents’ costs.

Orders

Orders of the court

That the application filed 1 July 2009 be dismissed.

That subject to any application by either party within seven (7) days of this order, direct the applicant pay the respondent’s costs of the application fixed in the sum of $5,865.00.

That the applicant pay the respondent’s costs in respect of orders made 9 December 2009 assessed in the sum of $2,200.00.

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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