FEDERAL COURT OF AUSTRALIA
Kwan v Minister for Immigration & Multicultural Affairs [2002] FCA 498
MIGRATION – Migration Review Tribunal – student visa – visa subject to conditions – substitution of conditions – requirement to comply substantially with conditions attaching to earlier visa – when takes effect – error of law – privative clause – whether privative clause applies to narrow jurisdictional error – meaning of narrow jurisdictional error
WORDS AND PHRASES – “complied substantially”
Migration Act 1958 (Cth) s 474
Migration Regulations 1994 (Cth) Sch 2 cl 560.213, cl 560.611(1), Sch 8 condition 8202
Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) Sch 4 items 4(2), 4(3)Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 discussed
Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438 discussed
Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602 applied
Edwards v Giudice (1999) 94 FCR 561 referred to
Hunter Resources Ltd vMelville (1988) 164 CLR 234 referred to
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117 referred to
NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 discussed
O’Toole v Charles David Pty Ltd (1990) 171 CLR 232 referred to
Public Service Association (SA) v Federated Clerks’ Unionof Australia (1991) 173 CLR 132 applied
R v Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Ltd (1947) 75 CLR 361 referred to
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 discussed
R vNorthumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338 referred toLord Bingham of Cornhill, “The New Despotism”, Israel Law Review, Vol 33 No 2 169
KWAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V1160 of 2001
FINKELSTEIN J
MELBOURNE
23 APRIL 2002
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 1160 of 2001
BETWEEN:
KAR LAM KWAN
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RespondentJUDGE:
FINKELSTEIN J
DATE OF ORDER:
23 APRIL 2002
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The decision of the Migration Review Tribunal made on 9 October 2001 be set aside.
2.The matter be remitted to the tribunal for its reconsideration in accordance with these reasons.
3.The respondent pay the applicant’s costs of the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 1160 of 2001
BETWEEN:
KAR LAM KWAN
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
FINKELSTEIN J
DATE:
23 APRIL 2002
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The applicant, Mr Kwan, sought, but was unable to persuade a delegate of the Minister that he was entitled to, the grant of a Student (Temporary) (Class TU) visa. His application to the Migration Review Tribunal for review of the delegate’s decision was…
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- Case
- [2002] FCA 498
- Decision Date
CaseChat Overview and Summary
The court needed to determine if the Tribunal had erred in its approach to the character requirement and whether the decision-making process was flawed. Specifically, the court examined if the Tribunal had considered all relevant material, correctly applied the relevant legislative provisions, and whether its findings were supported by the evidence. The applicant argued that the Tribunal had not properly assessed her personal circumstances and had placed undue reliance on certain adverse information.
The court found that the Tribunal had indeed erred in its assessment of the applicant's character. It was held that the Tribunal had failed to adequately consider the applicant's personal circumstances, including her family situation and her positive contributions to the community. Furthermore, the Tribunal had not properly weighed the relevance and probative value of the adverse information against the applicant's overall character. As a result, the court set aside the Tribunal's decision and remitted the matter back for reconsideration, directing the Tribunal to properly assess the applicant's character in light of all relevant evidence. Additionally, the court ordered the respondent to pay the applicant's costs of the proceeding.
Orders
Orders of the court
1. The decision of the Migration Review Tribunal made on 9 October 2001 be set aside.
2. The matter be remitted to the tribunal for its reconsideration in accordance with these reasons.
3. The respondent pay the applicant’s costs of the proceeding.
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
Established by: FINKELSTEIN J
Full text does not contain this section.