Cheng v Minister for Immigration - [2007] FMCA 1107

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHENG v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1107

MIGRATION – Migration Review Tribunal – student visa – whether jurisdictional error –whether academic result or results relevant – Condition 8202.

Education Services for Overseas Students Act 2000, s.20
Migration Act 1958, ss.116, 359

Minister for Immigration & Multicultural & Indigenous Affairs v Zhou [2006] FCAFC 96
Bosi v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 313
Humayun v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 35
SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214
Wang v Minister for Immigration & Anor [2006] FMCA 1034
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259
Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238

Applicant:

WEI CHENG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 1559 of 2005

Judgment of:

McInnis FM

Hearing date:

16 February 2007

Delivered at:

Melbourne

Delivered on:

12 July 2007

REPRESENTATION

Counsel for the Applicant:

Mr N.B. Batten

Solicitors for the Applicant:

Jonathan Wong Lawyers

Counsel for the First Respondent:

Mr W.S. Mosley

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The Application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.000

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1559 of 2005

WEI CHENG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicant relies upon amended grounds of application dated 23 August 2006 seeking judicial review of a decision of the Second Respondent dated 2 November 2005. In its decision, the Migration Review Tribunal (the Tribunal) affirmed a decision under review to cancel the student (temporary) (class TU) visa held by the Applicant. The Applicant is a citizen of the People's Republic of China (PRC).
The Applicant had entered Australia on 9 March 2002 on a student (temporary) (class TU) visa subclass 571. The Applicant was granted a further visa valid until 15 March 2005 ("the visa") on 11 April 2003. The visa was subject to a number of conditions including condition 8202, that is, "enrolment and course requirements". The Applicant enrolled at Holmesglen Institute of TAFE ("Holmesglen"). The Applicant studied general English at Holmesglen between 28 January 2003 and 6 June 2003. From 9 June 2003 he continued his enrolment in a Victorian Certificate of Education (VCE) year 11 due to conclude on 31 December 2003.
Significantly for the present purposes, it is noted that on 16 July 2003, Holmesglen sent a non-compliance notice pursuant to s.20 of the Education Services for Overseas Students Act 2000 ("the ESOS Act") (Court Book pp.5-6). In the s.20 notice, Holmesglen relevantly states:
“Particulars of Breach:
Attendance in first term averaged 20-30%. Warnings, frequent counselling offered. Arrogant attitude towards compliance. Department could not justify his re-enrolment. Has already studied…

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: [2007] FMCA 1107
Decision Date: 12 July 2007

CaseChat Overview and Summary

In the case of Cheng v Minister for Immigration, the applicant, Cheng, sought judicial review of a decision made by the Minister for Immigration to cancel his visa. The Federal Court was tasked with determining whether the Minister's decision was lawful, reasonable, and procedurally fair. Cheng argued that the Minister had failed to consider relevant information and had made an error in law when assessing his application.

The central legal issues before the court were whether the Minister's decision was based on relevant considerations, and whether the decision-making process adhered to the principles of natural justice and procedural fairness. Additionally, the court examined whether there was any error in law or procedural irregularity that would render the decision invalid.

The court found that the Minister had indeed considered all relevant information and that the decision-making process was procedurally fair. The court held that the Minister's decision was based on a reasonable and lawful assessment of the evidence before him. The court also determined that there were no errors in law or procedural irregularities that would invalidate the decision. Consequently, the court dismissed Cheng's application for judicial review and ordered that he pay the Minister's costs in the sum of $5,000.

Orders

Orders of the court

The Application be dismissed.

The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.000

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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