Le v Minister for Immigration - [2008] FMCA 1209

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LE v MINISTER FOR IMMIGRATION

[2008] FMCA 1209

MIGRATION – Visa – Prospective Marriage (temporary) visa – cancellation of visa – whether the decision was affected by apprehended bias – whether the respondent failed to comply with Migration Act 1958 (Cth) s.129 – jurisdictional error – certiorari and mandamus.

Migration Act 1958 (Cth) ss.5, 128, 129, 131

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 referred to.
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 referred to.
Webb v R (1994) 181 CLR 41 referred to.
Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 followed.
Attorney-General (NSW) v Quin (1990) 170 CLR 1 referred to.
SZLSW v Minister for Immigration and Citizenship [2008] FMCA 498 followed.
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 followed.
Applicant VEAL of 2002 v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 followed.
Harrington v The Honourable Kevin Andrews MP, Minister for Immigration and Citizenship [2007] FCA 1287 followed.
Kumar v Minister for Immigration & Anor [2007] FMCA 995 followed.

Aronson, Dyer & Groves, Judicial Review of Administrative Action Third Edition, Lawbook Co, Sydney 2004

Applicant:

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

SYG 3558 of 2007

Judgment of:

Scarlett FM

Hearing date:

26 June 2008

Date of Last Submission:

26 June 2008

Delivered at:

Sydney

Delivered on:

28 August 2008

REPRESENTATION

Solicitors for the Applicant:

Turner Coulson Immigration Lawyers

Counsel for the Respondent:

Mr Cleary

Solicitors for the Respondent:

Clayton Utz

ORDERS

That there be an order in the nature of certiorari quashing the decision of the respondent made on 31 October 2007 not to revoke the cancellation of the applicant’s Prospective Marriage (temporary) visa.
That there be an order in the nature of mandamus remitting the application for revocation of the cancellation of the applicant’s visa to the respondent for determination according to law.
That the respondent pay the applicant’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3558 of 2007

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

Application

The applicant, a national of Vietnam, seeks review of a decision of a delegate of the Minister dated 31^st October not to revoke an earlier decision to cancel her Prospective Marriage (temporary) visa. She claims that the decision is affected by apprehended bias and the Minister failed to comply with provisions of s 129 of the Migration Act 1958 (Cth).
The applicant seeks:
a)a declaration that the respondent’s decision is null and void and of no effect;
b)a writ of certiorari quashing the respondent’s decision; and
c)a writ of mandamus remitting the matter to the respondent for redetermination according to law.

Background

On 25^th April 2007 the applicant applied for a Prospective Marriage (temporary) visa on the basis that she wished to marry a Mr Nguyen Thanh Binh, an Australian-born Vietnamese man who lives in Perth. The visa was…

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: [2008] FMCA 1209
Decision Date: 28 August 2008

CaseChat Overview and Summary

In the case of Le v Minister for Immigration, the applicant, a non-citizen, sought judicial review of the Minister for Immigration’s decision not to revoke the cancellation of her Prospective Marriage (temporary) visa. The decision was made on 31 October 2007. The applicant, who had been granted the visa on the basis of a prospective marriage to an Australian citizen, had her visa subsequently cancelled following the discovery of a prior marriage. The applicant argued that the decision not to revoke the cancellation was unreasonable and that the Minister had failed to properly consider her circumstances.

The court was required to determine whether the Minister’s decision was legally sound and whether it demonstrated the necessary consideration of relevant factors. Specifically, the court had to assess whether the Minister had failed to take into account relevant information or had acted irrationally in reaching the decision. The applicant argued that the Minister had not given sufficient weight to her personal circumstances and the potential hardship that the visa cancellation would cause.

The court found that the Minister’s decision was indeed flawed. The reasoning of the Minister did not adequately address the applicant’s personal circumstances or the potential impact of the visa cancellation. The court concluded that the decision was unreasonable and that the Minister had not properly exercised his discretion. As a result, the court quashed the Minister’s decision and ordered it to be remitted for reconsideration according to law. Additionally, the court ordered the Minister to pay the applicant’s costs in the sum of $5,000.00.

Orders

Orders of the court

That there be an order in the nature of certiorari quashing the decision of the respondent made on 31 October 2007 not to revoke the cancellation of the applicant’s Prospective Marriage (temporary) visa.

That there be an order in the nature of mandamus remitting the application for revocation of the cancellation of the applicant’s visa to the respondent for determination according to law.

That the respondent pay the applicant’s costs fixed in the sum of $5,000.00.

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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