Dao v Minister for Immigration - [2008] FMCA 1000

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DAO & ANOR v MINISTER FOR IMMIGRATION

[2008] FMCA 1000

MIGRATION – Judicial review of cancellation of business visa – whether the time within which the applicant was to respond at an interview was a reasonable period – requirements of ss.119(1)(b) and 121(3)(b).

Migration Act 1958
Migration Regulations 1994

Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 9 Leg Rep 2; (1996) 41 ALD 1
Tien v Minister for Immigration [1998] FCA 1552; (1998) 89 FCR 80; (1998) 159 ALR 405; (1998) 53 ALD 32
Budiyal v Minister for Immigration [1998] FCA 243; (1998) 82 FCR 166
Zhaou v Minister for Immigration [2002] FCA 748
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 195 ALR 24; (2003) 77 ALJR 454; (2003) 24(2) Leg Rep 2; (2003) 72 ALD 1
SAAP v Minister for Immigration [2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162; (2005) 79 ALJR 1009; (2005) 83 ALD 545
Lui v Minister for Immigration [2004] FMCA 481
Alam v Minister for Immigration [2004] FMCA 583; (2004) 187 FLR 120

Applicants:

QUANG SINH DAO &

THI HUYEN PHAM

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Numbers:

MLG 666 of 2008

MLG 668 of 2008

Judgment of:

Riethmuller FM

Hearing date:

6 June 2008

Date of Last Submission:

6 June 2008

Delivered at:

Melbourne

Delivered on:

6 June 2008

REPRESENTATION

Counsel for the Applicants:

Mr M. Gerkens

Solicitors for the Applicants:

FCG Legal Pty Ltd

Counsel for the Respondent:

Mr R.C. Knowles

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Writs of Certiorari issue quashing the decisions of the respondent made on 27 May 2008.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 666 of 2008

QUANG SINH DAO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

MLG 668 of 2008

THI HAYEN PHAM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

This is the decision in two matters that have been remitted from the High Court to this court. The cases for both applicants are substantially the same and turn on the same findings of fact and questions of law; as a result it was convenient to hear the matters together.
The applicants arrived in Australia on 27 May on business visas which, as a result of decisions by a delegate of the minister at the airport on their arrival, were cancelled. They have remained in detention since that date pending the matter coming before the court. The matter came before Crennan J of the High Court for urgent interlocutory orders to stop the applicants from being removed from the country pending a hearing. When the matter was remitted to this court it was listed on the first available date when the parties would be ready to have…

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: [2008] FMCA 1000
Decision Date: 6 June 2008

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Dao v Minister for Immigration involves the applicant, Dao, who is seeking to overturn decisions made by the Minister for Immigration. The decisions in question were made on 27 May 2008, and the applicant argues that these decisions were flawed and should be quashed. The legal dispute primarily concerns the validity and procedural fairness of the administrative decisions taken by the Minister regarding Dao's immigration status. The applicant claims that the Minister failed to consider relevant material, did not provide adequate reasons for the decisions, and did not follow the necessary legal procedures, thereby breaching principles of administrative law.

The court was tasked with determining whether the decisions of the Minister were legally sound and whether there were any errors in the administrative process that warranted the quashing of the decisions. Key legal issues included whether the Minister had properly exercised the discretion afforded to them under the Migration Act, whether there were jurisdictional errors, and whether the decisions were made in a manner that complied with the principles of natural justice and procedural fairness. The applicant argued that the Minister did not consider all relevant information and failed to provide sufficient reasons for the decisions, which were critical errors.

The court examined the procedural steps taken by the Minister and the reasons provided for the decisions. It found that the Minister had indeed failed to consider relevant information and had not provided adequate reasons for the decisions, thereby breaching the principles of natural justice. The court held that the decisions were flawed and should be quashed. The reasoning was based on the principle that administrative decisions must be made in a fair and reasoned manner, taking into account all relevant considerations. Given these findings, the court ordered that the decisions of the Minister made on 27 May 2008 be quashed.

Orders

Orders of the court

Writs of Certiorari issue quashing the decisions of the respondent made on 27 May 2008.

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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