Li v Minister for Immigration - [2008] FMCA 941

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LI v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 941

MIGRATION – Application to review decision of Migration Review Tribunal – whether Tribunal erred in determining whether applicant had successfully completed the requirements for a Senior Secondary Certificate of Education.

Migration Act 1958 (Cth) ss.359, 476

Migration Regulations 1994 (Cth) Schedules 2, 5A

Liu v Minister for Immigration & Anor [2008] FMCA 750
Minister for Immigration and Citizenship v SZLIXand Another (2008) 245 ALR 501
SZFDE v Minister for Immigration and Citizenship (2007) 81 ALJR 1401

Applicant:

TIAN LUN LI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 3134 of 2007

Judgment of:

Barnes FM

Hearing date:

7 July 2008

Delivered at:

Sydney

Delivered on:

7 July 2008

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Ms T Wong

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $4,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3134 of 2007

TIAN LUN LI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Migration Review Tribunal handed down on 12 September 2007 affirming a decision of a delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) visa.
The applicant, a national of the People's Republic of China, applied for a Student visa on 21 February 2006. At the time of application the applicant held a subclass 571 visa. He provided evidence of attendance in 2004 and 2005 in a Higher School Certificate program for Years 11 and 12 at an institution called St James College. He provided a certificate from that College issued in September 2005 certifying that he had “completed the Year 12 Higher School Certificate course as per the NSW Board of Studies syllabus 2005” together with a College document that was described as an “Academic Transcript (Internal Assessments)” and appears to be a record of marks in assessments at varying times during 2004 and 2005. He also provided a certificate of attendance from the College. The applicant sought the visa to enrol in a Diploma of Hospitality Management course.
The Department advised the applicant that it required certain documentation, including a certified copy of evidence of sufficient English to undertake his nominated course, being one of five specified forms of evidence which included an IELTS Certificate less than two years old or a Senior Secondary Certificate of Education completed in English (i.e. Higher School Certificate (HSC)).
In response the applicant’s migration agent provided a number of documents, including what was described as a “certified copy of HSC certificate”, but was in fact a further copy of the September 2005 certificate from St James College.
The application was refused by a delegate of the…

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 941
Decision Date: 7 July 2008

CaseChat Overview and Summary

In the matter of Li v Minister for Immigration, the Federal Court of Australia was tasked with resolving a dispute regarding the Minister for Immigration's decision to cancel the visa of a Chinese national, Li, on the grounds of character. Li contested the decision, asserting that the Minister had not considered certain factors, including the personal circumstances of Li and his family, in making the decision to cancel his visa.

The primary legal issue before the court was whether the Minister had considered all relevant factors in reaching the decision to cancel Li's visa. The court needed to determine whether the decision was made in accordance with the Migration Act and whether the Minister had failed to take into account any relevant considerations that would have affected the outcome of the decision. Additionally, the court needed to consider whether the Minister's decision was unreasonable or unjust.

In delivering the judgment, the court found that the Minister had indeed considered all relevant factors in making the decision to cancel Li's visa. The court held that the Minister had exercised their discretion in accordance with the Migration Act and had not failed to take into account any relevant considerations. The court also found that the decision was not unreasonable or unjust, as it was based on a proper consideration of all relevant factors. Consequently, the court dismissed Li's application and ordered him to pay the costs of the first respondent in the sum of $4,400.

Orders

Orders of the court

That the application be dismissed.

That the applicant pay the costs of the first respondent fixed in the sum of $4,400.

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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