Li v Minister for Immigration - [2010] FMCA 583

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LI v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 583

MIGRATION – Migration Review Tribunal – Employer Nomination Visa – whether “exceptional circumstances” to waive the English language requirement – whether policy guidelines to be applied – whether jurisdictional error.

Migration Act 1958 (Cth), s.476
Migration Regulations 1994 (Cth), reg.857.213(b)(ii)(B)

An & Ors v Minister for Immigration and Citizenship & Anor (2007) 160 FCR 480; [2007] FCAFC 97
Cohn & Ors v Hatcher (2005) 146 FCR 275; [2005] FCAFC 199
El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43; [2004] FCA 1038
Hatcher v Cohn (2004) 139 FCR 425; [2004] FCA 1548
Hneidi v Minister for Immigration and Citizenship (2010) 182 FCR 115; [2010] FCAFC 20
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Rashid v Minister for Immigration and Citizenship [2007] FCAFC 25
Re Drake v Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Shun Ning Mok v Minister for Immigration [2008] FMCA 162
United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60
Vishnumolakala v Minister for Immigration and Multicultural Affairs [2006] FMCA 1209

Applicant:

ZHONGYI LI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

PEG 18 of 2010

Judgment of:

Lucev FM

Hearing date:

13 April 2010

Date of Last Submission:

13 April 2010

Delivered at:

Perth

Delivered on:

6 August 2010

REPRESENTATION

Counsel for the Applicant:

Ms L Chen

Solicitors for the Applicant:

Lily Chen & Associates

Counsel for the Respondents:

Mr A Gerrard

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 18 of 2010

ZHONGYI LI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

Mr Zhongyi Li:
a)is a national of the Peoples Republic of China;[1]
b)was born on 12 June 1963;[2] and
c)first arrived in Australia on 16 June 2005 as the holder of a subclass 457 visa.[3]
[1] “China”; Court Book (“CB”) 3 and 50.
[2] CB 50.
[3] CB 130.
This is an application by Mr Li for review of a decision made by the Migration Review Tribunal[4] affirming a decision of a delegate[5] refusing to grant a subclass 857 Employer Nomination (Residence) (Class BW) visa[6] to Mr Li.
[4] “Tribunal”.
[5] “Delegate’s Decision”.
[6] “Visa”.

Delegate’s Decision – refusal of Visa application

Mr Li’s application for the Visa was made on 14 May 2008 and his spouse, Mei Rong Hong, was included in the application.[7] The Visa application was refused on 21 August 2008.[8] The bases for the refusal were that Mr Li did not:
a)have functional English; and
b)did not satisfy the delegate that there were exceptional circumstances,[9]
in accordance with reg.857.213(b)(ii)(B) of the Migration Regulations…

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.

Keep reading for free

Create a free CaseChat account to read Li v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] FMCA 583
Decision Date: 6 August 2010

CaseChat Overview and Summary

The case of Li v Minister for Immigration arose from an application for judicial review of the decision of the Minister for Immigration to refuse the applicant's application for a bridging visa. The applicant, Mr Li, sought to challenge the Minister's decision on the grounds of alleged errors in the application of the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). The Federal Court of Australia was called upon to consider the validity of the Minister's decision.

The primary legal issues before the court were whether the Minister had correctly applied the relevant legislative provisions in making the decision and whether there were any jurisdictional errors in the process that led to the decision. The applicant argued that the Minister had failed to consider relevant information and had applied an incorrect legal test in reaching the decision. The Minister, on the other hand, maintained that the decision was properly made within the confines of the applicable laws and regulations.

The court examined the legislative framework and the specific provisions of the Migration Act and Regulations that applied to the case. It considered the principles of administrative law relevant to the review of administrative decisions, including the scope of judicial review and the standards of decision-making. The court found that the Minister had not erred in applying the law or in the process of decision-making. It concluded that the decision was well within the Minister's jurisdiction and that there were no grounds for the court to interfere with the decision. Therefore, the application for judicial review was dismissed.

Orders

Orders of the court

The application be dismissed.

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

Full text does not contain this section.