Le v Minister for Immigration - [2010] FMCA 460

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LE v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 460

MIGRATION – Migration Review Tribunal – student visa – condition 8202 – Attendance requirement – cancellation.

MIGRATION – Migration Review Tribunal – notice under s.359A – detail of attendance records.

Migration Act 1958, ss.116(3), 359A
Migration Regulations 1994, rr.2.43(2)(b)(i) and (ii)

Brar v The Minister [2008] FMCA 1026; (2008) 220 FLR 9
Isahak v The Minister [2008] FMCA 613
Khan v The Minister for Immigration [2009] FMCA 1185
Khergamwala v The Minister [2007] FMCA 690
Tongburin v The Minister [2008] FMCA 644; (2008) 218 FLR 93

Applicant:

HOANG NAM LE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 159 of 2010

Judgment of:

Riethmuller FM

Hearing date:

31 May 2010

Date of Last Submission:

31 May 2010

Delivered at:

Melbourne

Delivered on:

16 September 2010

REPRESENTATION

Counsel for the Applicant:

Mr Thapliyal

Solicitors for the Applicant:

Challenge Legal Lawyers

Counsel for the Respondents:

Mr Horan

Solicitors for the Respondents:

DLA Philips Fox

ORDERS

That a writ of Certiorari issue quashing the decision of the Second Respondent made on 30 December 2009.
That a writ of Mandamus issue requiring the Second Respondent to hear and determine the application according to law.
That the First Respondent pay the costs of the Applicant fixed in the sum of $5865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 159 of 2010

HOANG NAM LE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Vietnam. He came to Australia on 23 August 2007 on a sub-class 573 higher education sector visa (a student visa). The applicant was to commence a course at Deakin University on 24 August 2007. On April 2008 Deakin University certified that the applicant had not achieved satisfactory course attendance for the purposes of one of the conditions of his visa. He was given notice of intention to cancel his visa on this ground on 1 May 2008. On 4 August 2008 a delegate of the Minister cancelled the applicant’s visa. On 21 August 2008 the applicant applied to the Migration Review Tribunal for a review of the delegate’ decision.
On 30 December 2009 the tribunal confirmed the decision of the delegate, finding that the applicant had not complied with the course attendance requirement of his visa and that the non-compliance was not due to exceptional circumstances beyond his control, as referred to in s.116(3) of the Migration Act 1958 and reg.2.43(2)(b)(i) and (ii) of the Regulations. The applicant then sought judicial review on 2 February 2010 in the Federal Magistrates Court.
The tribunal, in their decision, recount the relevant law and proceed to set out in full the various documents provided and the various letters provided by the applicant to the tribunal setting out the applicant’s circumstances and, in particular, the facts and circumstances relied upon by him to attempt to…

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: [2010] FMCA 460
Decision Date: 16 September 2010

CaseChat Overview and Summary

The case involves Le, the applicant, against the Minister for Immigration, the first respondent, and the Migration Review Tribunal, the second respondent. The applicant, a student from Vietnam, sought a review of a decision to cancel his student visa. The tribunal had found that he had failed to comply with the attendance requirements of his visa, in breach of section 8202 of the Migration Act. The Federal Court was asked to review the tribunal's decision.

The central legal issue before the court was whether the tribunal had acted lawfully and in accordance with the relevant legislation. Specifically, the court had to consider if the tribunal had properly assessed the evidence of the applicant's attendance records and if it had provided adequate reasons for its decision. The court also needed to determine if the tribunal had complied with its obligations under section 359A of the Migration Act, which requires detailed notice of the attendance records to be provided to the applicant.

The court found that the tribunal had not provided the applicant with sufficient detail of the attendance records that were relied upon, and thus, the tribunal had not properly considered the evidence. The court held that the tribunal's decision was flawed because it did not provide adequate reasons for the cancellation of the visa. The court quashed the tribunal's decision and ordered that the matter be remitted to the tribunal for reconsideration. The court also ordered the minister to pay the applicant's costs of $5865.

The final orders of the court were that a writ of Certiorari issue quashing the tribunal's decision, a writ of Mandamus issue requiring the tribunal to hear and determine the application according to law, and that the minister pay the applicant's costs in the sum of $5865.

Orders

Orders of the court

That a writ of Certiorari issue quashing the decision of the Second Respondent made on 30 December 2009.

That a writ of Mandamus issue requiring the Second Respondent to hear and determine the application according to law.

That the First Respondent pay the costs of the Applicant fixed in the sum of $5865.

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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