Le v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LE v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 401

MIGRATION – Review of MRT decision − where the applicant was sent a notice under s.20 Education Service for Overseas Student Act on the basis of unsatisfactory academic results − where the applicant attended the interview with a delegate of the Minister − where the applicant applied for merits review − where the Tribunal did not take into account the applicant’s reasons for non-compliance with condition 8202 − whether the Tribunal was required to take into account any exceptional circumstances put forward by the applicant − whether mandatory cancellation of the student visa precludes the Tribunal from exercising its statutory jurisdiction including a consideration of exceptional circumstances under s.338 Migration Act − whether a substantive visa which has been cancelled remains effective pending the completion of a merits review.

Migration Act 1958, ss5, 14, 116(1)(b), 137, 166(3), 338, 349(3)
Education Service for Overseas Students Act 2000, s.20
Migration Amendment Regulations 2005 (No.8)

Uddin v Minister for Immigration [2005] FMCA 841
Minister for Immigration v Zhou [2006] FCAFC 96
Shrestha v Minister for Immigration (2001) 64 ALD 669

Applicant: MINH QUAN LE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG1766 of 2006

Judgment of: Raphael FM

Hearing date: 8 March 2007

Date of Last Submission: 8 March 2007

Delivered at: Sydney

Delivered on: 27 March 2007

REPRESENTATION

Counsel for the Applicant: Mr I Asuzu

Solicitors for the Applicant: Australasia Migration & Legal Services

Counsel for the Respondents: Ms S Sirtes

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the first respondent’s costs assessed in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1766 of 2006

MINH QUAN LE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This application raises the interesting question of the status of a decision of the Minister’s delegate where that decision is able to be reviewed by an independent Tribunal and the applicant has availed himself of the right to review.

2. Mr Ming Quan Le is a national of Vietnam who arrived in Australia on 23 May 2001 to study.  He has held the following visas:

   ·Student Temporary (Class TU) 560 visa granted 15/5/01 until 30/7/02.

   ·Bridging A visa granted 25/7/02 until 14/8/02.

   ·Student Temporary (Class TU) 573 visa granted 15/8/02 until 31/10/02.

   ·Student Temporary (Class TU) 573 visa granted 31/10/02 until 23/9/05. [CB 119]

3. The last visa he held enabled him to enrol in a Bachelor of Science (Information Technology) Degree course at Curtin University of Technology Perth Western Australia.  He proceeded in the course with the moderate success described by the Tribunal in [10] of the Tribunal’s decision at [CB 120].  In semester 1 of 2005 he failed two out of the three subjects which he had taken.  On 19 August…