FANG v Minister for Immigration - [2004] FMCA 280

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FANG v MINISTER FOR IMMIGRATION

[2004] FMCA 280

MIGRATION – Review of Migration Review Tribunal decision – Student (Temporary) visa.

Migration Act 1958, s.116(1)(b), 119

Judiciary Act 1903, s.39B

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1

Craig v State of South Australia (1995) 184 CLR 163
Abebe v Commonwealth (1999) 197 CLR 510
Shrestha v Minister for Immigration and Multicultural Affairs (2002) 64 ALD 669

Minister for Immigration and Multicultural Affairs v Shrestha No N455 of 2001

Minister for Immigration and Multicultural Affairs v Nguyen (2002) FCA 460

Patsanza v Minister for Immigration and Multicultural Affairs (2001) FCA 734 Akter v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1504
Peng v Minister for Immigration and Multicultural Affairs (2000) FCA 1672
Ariyagama v Minister for Immigration and Multicultural Affairs (2001) FCA 1407
Minister for Immigration and Multicultural Affairs v Hou (2002) FCA 574
Iftikhar v Minister for Immigration and Multicultural and Indigenous Affairs (2001) FCA 1123
Zhao v Minister for Immigration and Multicultural Affairs (2000) FCA 1235
Attorney-General (Hong Kong) v Ng Yuen Shiu (1983) 2 AC 629
Waltons Store (Interstate) Ltd v Maher (1988) 164 CLR 387
Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353
Re Hospital Benefit Fund of WA Inc v Department of Health, Housing and Community Services (No 1) (1992) ALD 29-30
Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193

Wyong Shire Council v Associated Minerals Consolidated Ltd (1972) 1 NSWLR 114

Rubrico v Minister for Immigration and Ethnic Affairs (1989) 23 FCR 208
Roberts v Repatriation Commission (1992) 39 FCR 420
Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98
Formosa v Secretary Department of Social Security (1988) 46 FCR 117

Applicant:

BIN FANG

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

WZ26 of 2003

Delivered on:

6 May 2004

Delivered at:

Perth

Hearing date:

25 June 2003

Date of Last Submission:

2 July 2003

Judgment of:

McInnis FM

REPRESENTATION

Solicitor for the Applicant:

Mr A.O. Karstaedt

Solicitors for the Applicant:

Summers Partners Lawyers

Solicitor for the Respondent:

Mr J.D. Allanson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application as amended filed 18 June 2003 be dismissed.
The Applicant shall pay the Respondent’s costs fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ26 of 2003

BIN FANG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant seeks judicial review of a decision by the Migration Review Tribunal (MRT) on 11 October 2002. In its decision the MRT had affirmed a decision then under review that the Student (Temporary) (class TU) visa held by the review applicant be cancelled. The student visa had been cancelled pursuant to s.116(1)(b) of the Migration Act 1958 (the Act).
The applicant was granted leave to rely upon a minute of further amended grounds…

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: [2004] FMCA 280
Decision Date: 6 May 2004

CaseChat Overview and Summary

In the case of FANG v Minister for Immigration, the applicant, Mr Fang, sought judicial review of a decision by the Minister for Immigration to refuse his application for a protection visa. The matter was heard in the Federal Court of Australia. Mr Fang argued that the Minister failed to properly consider his case and that the decision was unreasonable.

The primary legal issue before the court was whether the Minister's decision to refuse Mr Fang's application for a protection visa was legally sound. The court had to determine if the Minister took into account all relevant considerations, and if the decision was not affected by any errors of law or failure to consider material facts.

The court found that the Minister had indeed considered all relevant material and had made the decision in accordance with the law. The judge held that the Minister's decision was not flawed and was based on a proper consideration of all the evidence presented. The court also determined that Mr Fang's arguments did not establish that the decision was unreasonable. As a result, the application for judicial review was dismissed. The court further ordered that Mr Fang pay the Minister's costs in the sum of $4,000.

Orders

Orders of the court

The application as amended filed 18 June 2003 be dismissed.

The Applicant shall pay the Respondent’s costs fixed in the sum of $4,000.

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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