Fan v Minister for Immigration - [2011] FMCA 24

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAN & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 24

MIGRATION – VISA – Business Visa – Class EA (subclass 132) (Business Talent) – application for judicial review of decision of Administrative Appeals Tribunal – decision by delegate to cancel visa – where applicants were secondary visa holders – whether the notice under Migration Act 1958 (Cth) s. 135 can only be issued once the primary visa holder’s visa has been cancelled – where notice issued to the secondary visa holders when the primary visa holder’s visa had not been cancelled – where second applicant is a minor – whether second applicant was given a notice under Migration Act 1958 (Cth) s. 135 by way of a notice given to the first applicant – whether technical breach – whether practical injustice – whether review proceedings invalid for non-compliance with statute – no adverse consequences of failure to comply with procedural obligation.

Migration Act 1958 (Cth), ss.66, 134, 135, 424A, 441A, 494A, 494B
Migration Regulations 1994 (Cth), reg. 2.55

Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
Zhong v Minister for Immigration and Citizenship (2008) 171 FCR 444
Lin and Minister for Immigration and Citizenship [2009] AATA 938
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162
Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627 followed
SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79; (2010) 185 FCR 129 followed

First Applicant:

YANLING FAN

Second Applicant:

ZEQIAN CHEN (BY HER LITIGATION GUARDIAN JOHN HAN)

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1718 of 2010

Judgment of:

Scarlett FM

Hearing date:

17 November 2010

Date of Last Submission:

17 November 2010

Delivered at:

Sydney

Delivered on:

25 January 2011

REPRESENTATION

Solicitors for the Applicants:

Dobbie and Devine Immigration Lawyers

Counsel for the First Respondents:

Mr Potts

Solicitors for the First Respondents:

Clayton Utz

Solicitors for the Second Respondent:

Phillip Kellow

ORDERS

The application is dismissed.
The first applicant is to pay the first respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1718 of 2010

YANLING FAN

First Applicant

ZEQIAN CHEN (BY HER LITIGATION GUARDIAN JOHN HAN)

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision by the Administrative Appeals Tribunal made on 9^th July 2010 to affirm a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship, to cancel the applicants’ Class EA (subclass 132) (Business Talent) visas.
In their application, the applicants seek the following:
i)A writ of certiorari directed to the second respondent quashing the Tribunal decision;
ii)A writ of mandamus directed to the second respondent requiring it to rehear and determine the applicants’ application according to law;
iii)A writ of prohibition preventing the first respondent, the…

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 24
Decision Date: 25 January 2011

CaseChat Overview and Summary

The applicants, Ms Fan and others, challenged the decision of a delegate to cancel their visas under the Migration Act 1958 (Cth), which was made in consequence of the cancellation of the visa of the primary visa holder, Mr Minhua Chen. The applicants argued that the delegate’s power to issue a notice proposing to cancel the visas held by the secondary visa holders was contingent upon the prior cancellation of the visa held by the primary visa holder. They relied on the decision of Lander J in Zhong v Minister for Immigration and Citizenship, which held that a Notice under s. 107 could only be issued if the Minister, or a delegate of the Minister, had concluded that the visa holder had not complied with a relevant section of the Act. The applicants contended that the delegate's decision was invalid because it did not adhere to the condition precedent established in Zhong.

The primary legal issue before the court was whether the delegate's power to cancel the visas of the secondary visa holders was contingent on the prior cancellation of the visa of the primary visa holder. The court had to determine if the decision in Zhong applied to the circumstances of the present case and, if so, whether the Tribunal’s decision in Lin and Minister for Immigration and Citizenship, which rejected the argument that the cancellation of the visa holder’s visa is a pre-condition or a condition precedent, was correct. The court considered the legislative framework and the interplay between sections 107 and 135 of the Act, as well as the appropriate interpretation of the relevant provisions.

The court found that the decision in Zhong did not apply to the present case as the Tribunal had correctly distinguished Zhong in its decision in Lin. The court held that the cancellation of the primary visa holder’s visa was not a condition precedent to the issuing of a notice to the secondary visa holders under s. 135 of the Act. The court affirmed the decision of the Tribunal, concluding that the delegate had validly exercised their power under the Act in cancelling the visas of the secondary visa holders. The applicants' argument was rejected, and the decision to cancel their visas was upheld.

The court dismissed the applicants' application, ordering that the first applicant pay the first respondent’s costs. The court's decision upheld the Tribunal's interpretation of the legislative provisions and clarified the legal position regarding the cancellation of secondary visa holders' visas in the context of the Migration Act 1958 (Cth).

Orders

Orders of the court

The application is dismissed.

The first applicant is to pay the first respondent’s costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

That same day, the delegate wrote to the first applicant, giving her notice that her visa had been cancelled. The letter stated (in part):The Migration Act 1958 (the Act) provides that where a person’s visa is cancelled under section 134 of the Act and another person holds a visa only because the person whose visa is cancelled held a visa, then the Minister must cancel the other person’s visa by giving written notice. On 21 October 2009 Mr Minhua Chen’s visa was cancelled under section 134 of the Act. As you were granted a visa because Mr Minhua Chen was granted a visa, your Business Skills visa and the visas held by the following members of your family unit must be cancelled:· Ms Zeqian Chen[5][5] Court Book at 6 On 1st February 2010, the first applicant applied to the Administrative Appeals Tribunal for review of the delegate’s decision. The Tribunal heard the application, along with the applications of the other visa holders, on 28th June 2010 and handed down its decision on 9th July 2010, affirming the delegate’s decision. In its Reasons for Decision, the Administrative Appeals Tribunal defined the issues in relation to Ms Fan, Mr Ting Chen and Ms Zeqian Chen as:i)whether the decisions to cancel their visas were made in accordance with the provisions of the Act; andii)whether their visas should not be cancelled because they will suffer extreme hardship as a result. The applicants argued that it was a condition precedent to the valid exercise of the delegate’s power to issue a notice proposing to cancel the visas[6] held by the secondary visa holders, Ms Fan, Mr Ting Chen and Ms Chen, that the visa held by the primary visa holder, Mr Minhua Chen, had already been cancelled. The applicants relied on the decision of Lander J in Zhong v Minister for Immigration and Citizenship[7], which considered when a Notice under s. 107 could be issued for the purpose of a cancellation under s. 109 of the Act. Lander J held at [72]:In my opinion, s 107 is only engaged where the Minister, or relevantly a delegate of the Minister, has concluded that the holder of a visa has not complied with one of the sections or subsections mentioned in s 107(1). It is only in that case that the Minister or the delegate is entitled to give notice to the visa holder in accordance with that subsection. Section 107(1) is engaged because the Minister, or a delegate of the Minister, has reached a state of mind where they consider that the holder of a visa has not complied with a relevant section.[8] [6] A notice under the provisions of s. 135 of the Migration Act[7] (2008) 171 FCR 444[8] (2008) 171 FCR 444 at [72] However, the Tribunal followed its own decision in Lin and Minister for Immigration and Citizenship[9], distinguishing the decision in Zhong v Minister for Immigration and Citizenship and rejecting the argument that the cancellation of the visa holder’s visa is a pre-condition or a condition precedent to the issuing of a notice to the secondary visa holder under s. 135 of the Act.[10][9] [2009] AATA 938[10] Court Book 80 at [26]-[27