Lam v Minister for Immigration - [2006] FMCA 1505

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LAM v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1505

MIGRATION – Visa – Student visa cancellation under Migration Act 1958 (Cth) s.116 – Subclass 573 – condition 8202 – failure to meet course requirements – the validity of a cancellation under s.116 is not affected by the invalidity of a notice under Education Services for Overseas Students Act 2000 (Cth) s 20 – no jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss 116, 119, 137J

Education Services for Overseas Students Act2000, s.20

Uddin v Minister for Immigration & Multicultural Affairs [2005] FMCA 841 referred to
Minister for Immigration & Multicultural Affairs v Zhou [2006] FCAFC 96 followed

Applicant:

YIK WAI LAM

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

SYG 3284 of 2005

Judgment of:

Scarlett FM

Hearing date:

29 September 2006

Date of last submission:

29 September 2006

Delivered at:

Sydney

Delivered on:

29 September 2006

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Mr Lloyd

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $6,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3284 of 2005

YIK WAI LAM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of the Migration Review Tribunal made on 30^th September 2005 affirming the decision of a Delegate of the Minister to cancel the Applicant's Student (Temporary) (Class TU) visa. By his application filed on 10^th November 2005 the Applicant seeks an order that:
The decision to cancel my student visa should be revoked.

Background

The Applicant arrived in Australia from Hong Kong on 6^th October 2000 as the holder of a Student (Temporary) (Class TU) visa. When that visa expired on 5^th July 2001 he applied for another visa of that same type. On 4^th August 2003 he was issued with a Student (Temporary) (Class TU), sub-class 573 visa which was due to expire on 12^th August 2005. The visa was subject to Condition 8202 (enrolment and course requirements).
The Applicant's visa was cancelled on 12^th April 2005 for failure to meet the course requirements. The Applicant had been attending the University of Western Sydney but on 15^th March 2005 the University sent him a notice under s.20 of the Education Services for Overseas Students Act 2000 advising him that he had breached a condition of his student visa relating to satisfactory academic performance in the course in which he was enrolled. The particulars of the breach were given as:
Enrolment terminated, academic requirements not met.
On 1^st April 2005 the Delegate issued to the Applicant a Notice of Intention to cancel…

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: [2006] FMCA 1505
Decision Date: 29 September 2006

CaseChat Overview and Summary

Lam, the applicant, sought judicial review of a decision by the Minister for Immigration, the first respondent, to cancel his visa. The Federal Court was asked to determine the validity of the decision-making process and the outcome itself. The primary legal issue was whether the Minister's decision to cancel Lam's visa was lawful, focusing on procedural fairness and the Minister's consideration of relevant factors.

The court examined whether the Minister had adhered to the principles of procedural fairness and whether the decision was based on relevant and material considerations. It was crucial to determine if the Minister had acted within the scope of the Migration Act and followed the necessary steps in cancelling Lam's visa. The court considered whether the Minister's decision was rational and justifiable, given the evidence and circumstances presented.

The court found that the Minister's decision-making process was lawful, and the visa cancellation was justified based on the evidence provided. The court held that the Minister had observed procedural fairness and considered all relevant factors in reaching the decision. Consequently, the court dismissed Lam's application for judicial review. The Federal Court ordered that the title of the first respondent be changed to reflect the current Minister for Immigration & Multicultural Affairs. Additionally, the applicant was ordered to pay the costs of the proceedings to the first respondent, fixed at $6,000.

Orders

Orders of the court

The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.

The Application is dismissed.

The Applicant is to pay the First Respondent's costs fixed in the sum of $6,000.00.

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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