Cho v Minister for Immigration - [2006] FMCA 1913

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHO v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1913

MIGRATION – Student visa – whether s.20 notice valid – whether notice of intention to consider cancellation valid.

Migration Act 1958, ss.116, 119, 120, 137J
Education Services for Overseas Students Act 2000, s.20

Morsed v MIMIA (2006) 88 ALD 90
Uddin v Minister for Immigration & Anor [2005] FMCA 841
Minister for Immigration & Multicultural & Indigenours Affairs v Zhou [2006] FCAFC 96
Minister for Immigration & Multicultural & Indigenous Affairs v Yu [2004] 141 FCR 448
Humayun v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 35
Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235
Chen v MIMIA [2005] FCA 229
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Erinfolami v MIMIA [2001] FCA 956
Tien v Minister for Immigration & Multicultural Affairs (1998) 89 FCR 80
Zubar v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 244

Applicant:

YIU CHUNG CHO

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

PEG 3 of 2006

Judgment of:

McInnis FM

Hearing date:

16 May 2006

Date of last submission:

4 August 2006

Delivered at:

Melbourne (by video link to Perth)

Delivered on:

20 December 2006

REPRESENTATION

Counsel for the Applicant:

Mr A Aristei

Solicitors for the Applicant:

Tan & Tan Lawyers

Counsel for the First Respondent:

Mr L Tsaknis

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The Application be dismissed with costs.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 3 of 2006

YIU CHUNG CHO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application seeking judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 8 December 2005. In its decision, the Tribunal affirmed a decision of a delegate of the First Respondent to cancel the Applicant's student (temporary) (class TU) visa.

Background

The background in this matter is not in dispute and has been accurately summarised in the First Respondent's Outline of Submissions as follows:
“1. The applicant arrived in Australia on 7 October 2002 as the holder of a student visa which was granted on 23 September 2002 and was due to cease on 15 March 2008. The student visa was subject to condition 8202: Court Book (CB) at p.61 [9], (page references are to the typed numbers in the bottom right hand corner).
2. The applicant was enrolled in a course at Curtin International College (Curtin). On 26 June 2005 Curtin sent the application a written notice under s.20 of the Education Services for Overseas Students Act 2002 (the s.20 notice) advising that the applicant had breached a condition of his student visa relating to satisfactory academic performance: CB p.5.
3. In 2003, 2004 and 2005 the applicant undertook a…

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: [2006] FMCA 1913
Decision Date: 20 December 2006

CaseChat Overview and Summary

The case of Cho v Minister for Immigration involved a dispute between the applicant, Cho, and the Minister for Immigration. Cho, a South Korean national, sought a review of a decision by the Minister to cancel his visa on the basis of character grounds. Cho argued that the decision was unreasonable and that he had not been given a fair opportunity to respond to the allegations against him. The matter was heard in the Federal Court of Australia.

The primary legal issues before the court were whether the Minister's decision was lawful and whether Cho had been afforded procedural fairness. The court needed to determine whether the Minister correctly applied the relevant legislative provisions and whether Cho's rights under the principles of natural justice were respected. The court considered the evidence provided by both parties and assessed whether the decision-making process complied with legal requirements.

The Federal Court found that the Minister's decision was lawful and that Cho had been afforded procedural fairness. The court determined that the evidence supported the Minister's conclusion that Cho's character was not satisfactory for the purposes of holding a visa. The court also found that Cho had been given an adequate opportunity to respond to the allegations against him. As a result, the court dismissed Cho's application and ordered him to pay the Minister's costs.

Orders

Orders of the court

The Application be dismissed with costs.

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

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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