Chey v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHEY  v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1224

MIGRATION – Review of decision by Migration Review Tribunal – alleged jurisdictional errors – bias – application dismissed.

Migration Act1958 (Cth), ss.359, 359A, 360
Migration Regulations 1994, sub-reg.1.5A(4)(3), 1.15A(4), 1.15A(4)(3)(d)

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 293
Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 44
SZEJF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 724
SHJB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 303
Woods v Migration Agents Registration Authority [2004] FCA 1622
Re Refugee Review Tribunal and Another; Ex Parte H and Another (2001) 179 ALR 425
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Applicant: PHENG CHEY

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 441 of 2006

Judgment of: Burchardt FM

Hearing date: 14 August 2006

Delivered at: Melbourne

Delivered on: 6 September 2006

REPRESENTATION

Counsel for the Applicant: Mr. Gilbert

Solicitors for the Applicant: Erskine Rodan & Associates

Counsel for the Respondents: Mr. Mosley

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 441 of 2006

PHENG CHEY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed on 30 March 2006, the Applicant applies for orders that the decision of the Migration Review Tribunal (“the Tribunal”) given on 3 March 2006 be quashed, and ancillary orders remitting the matter to the Tribunal to be determined according to law. 

2. At the hearing of the matter, the Applicant relied upon contentions of fact and law filed on 5 July 2006, which raise four contentions of law which in effect were treated as the four grounds of attack upon the decision of the Tribunal. 

3. The relevant background is set out in the contentions of fact and law filed by the parties and can be summarised as follows.  (The succeeding paragraphs 4 – 25 repeat substantial parts of those contentions and are not, in my view, contentious). 

4. The Applicant was married in Cambodia on 18 April 2001 to

   
   

   Ms Channy Tong, an Australian citizen.  On 3 September 2002, the Applicant lodged a combined application for a partner (provisional) (class UF) (sub-class 309) visa and a partner (migrant) (class BC) (sub-class 100) visa and Ms Tong acted as the nominator. 

5. The Applicant arrived in Australia on 9 October 2002, following the issue to him on 10 September 2002 of a provisional sub-class 309 visa. 

6. On 7 July 2003, the nominator, through her then Migration Agent, advised the First Respondent’s Department (“the Department”) that the parties’ spousal relationship was in question from November 2002.  She advised that the parties had separated in March…