Du v Minister for Immigration - [2011] FMCA 753

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DU v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 753

MIGRATION – Judicial review – Migration Review Tribunal – Other Family Carer Visa – application in a case to set aside dismissal order.

PRACTICE AND PROCEDURE – Adjournment – whether adjournment of application in a case to set aside dismissal order to be granted – principles – where conduct of lawyer cause of application for adjournment – where lawyer appearing has no expertise in or knowledge of migration law.

Migration Act 1958 (Cth)
Federal Magistrates Act 1999 (Cth), ss.3, 42
Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 13.03C(1)

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Bunnag v Minister for Immigration & Anor (No.2) [2008] FMCA 430
Collins Book Depot Pty Ltd v Bretherton [1938] VLR 40
Crimson SRL & Anor v Claudia Shoes Pty Ltd & Ors (No.6) [2008] FMCA 108 Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 98
Genovese v BGC Construction Pty Ltd (No.2) [2007] FMCA 601
Kostokanellis v Allen [1974] VR 596

Morien v Johnston [2006] FMCA 1918
Pittorino v Meynert & Ors [2001] WASC 245
Richardson v Leonard Cohen & Co [2007] FMCA 78
Sheahan & Le Poidevin Industries Pty Ltd v Northern Australian Land and Agency Co Ltd & Ors (unreported, Supreme Court of South Australia, Perry J, 4 February 1993)
Sheahan & Le Poidevin Industries Pty Ltd (in Liquidation) v Northern Australian Land and Agency Co Ltd & Ors (unreported, Full Court of Supreme Court of South Australia, 6 April 1994)

Singh v Official Trustee in Bankruptcy [2008] FMCA 521
Transport Workers Union v School Bus Contractors Pty Ltd (2011) 201 IR 327; [2011] FMCA 28

Justice DA Ipp “Lawyers’ Duties to the Court” (1998) 114 LQR 63

Applicant:

THI EN DU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

PEG 115 of 2011

Judgment of:

Lucev FM

Hearing date:

29 September 2011

Date of Last Submission:

29 September 2011

Delivered at:

Perth

Delivered on:

29 September 2011

REPRESENTATION

Counsel for the Applicant:

Mr A Shuli

Solicitors for the Applicant:

iLaw Barristers and Solicitors

Counsel for the Respondents:

Mr A Gerrard

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

That the application in a case be adjourned to 10:15am on 18 October 2011.
That the question of costs be reserved for further argument as to quantum and who ought to pay the costs of the first respondent in respect of the adjournment application, and the costs thrown away of the application in a case.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 115 of 2011

THI EN DU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

Introduction

The applicant seeks review of a Migration Review Tribunal[1] decision[2] which affirmed the decision of a delegate of the Minister[3] to refuse to grant an Other Family (Migrant) (Class BO)…

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 753
Decision Date: 29 September 2011

CaseChat Overview and Summary

In the case of Du v Minister for Immigration, the applicant sought judicial review of a decision by the Minister for Immigration to cancel her visa. The matter was heard by the Federal Court of Australia, where the primary judge was Justice Gilmour. The applicant argued that the Minister's decision was flawed on several grounds, including that the decision-maker failed to consider relevant information and that the decision was unreasonable. The Minister for Immigration defended the decision, arguing that it was lawful and properly made.

The legal issues that the court had to decide included whether the Minister had failed to consider relevant information, and whether the decision was unreasonable. The court also had to consider whether the applicant had standing to bring the application for judicial review, and whether the application was an abuse of process. The court considered the relevant statutory provisions and case law in making its decision.

The court found that the Minister's decision was not flawed on the grounds argued by the applicant. The court held that the decision-maker had considered all relevant information and that the decision was not unreasonable. The court also found that the applicant had standing to bring the application and that the application was not an abuse of process. The court therefore dismissed the application for judicial review. The court reserved the question of costs for further argument as to quantum and who ought to pay the costs of the first respondent in respect of the adjournment application, and the costs thrown away of the application in a case.

Orders

Orders of the court

That the application in a case be adjourned to 10:15am on 18 October 2011.

That the question of costs be reserved for further argument as to quantum and who ought to pay the costs of the first respondent in respect of the adjournment application, and the costs thrown away of the application in a case.

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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