Li v Minister for Immigration - [2007] FMCA 952

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LI v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 952

MIGRATION – Student visa – Condition 8202 – Regulation 1.03 of Migration Regulations 1994 – Migration Review Tribunal – calculation of contact hours – whether jurisdictional error in failing to take into account relevant matter namely examination hours attended.

Education Services for Overseas Students Act 2000, s.20
Migration Act 1958, ss.116, 359A

Applicant:

SI JIA LI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 26 of 2006

Judgment of:

McInnis FM

Hearing date:

24 November 2006

Delivered at:

Melbourne

Delivered on:

22 June 2007

REPRESENTATION

Counsel for the Applicant:

Mr A. Krohn

Solicitors for the Applicant:

Chua Tan & Associates

Counsel for the First Respondent:

Ms E. Latif

Solicitors for the First Respondent:

Clayton Utz

ORDERS

A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 1 December 2005.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
The First Respondent shall pay the Applicant’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 26 of 2006

SI JIA LI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicant relies upon an Amended Application filed 20 November 2006 seeking judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 1 December 2005.
In its decision the Tribunal affirmed a decision of a delegate of the First Respondent to cancel the student (temporary) (class TU) visa (the visa) held by the Applicant.
The Applicant is a 25 year old citizen of the People’s Republic of China. He entered Australia on 26 September 2003 on a temporary student visa. He was granted further visas of a similar kind.
The visa had conditions attached, which include Condition 8202 which relevantly provides:
“8202(1)The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a…

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: [2007] FMCA 952
Decision Date: 22 June 2007

CaseChat Overview and Summary

Li sought judicial review of a decision made by the Minister for Immigration, which was the subject of a dispute between the two parties. The Federal Court of Australia was tasked with resolving the issues arising from this dispute.

The central legal issue before the court was whether the Minister had failed to properly consider all relevant material and whether this omission constituted a failure to act according to law. The court had to determine if the Minister's decision was legally sound and whether the appropriate procedural steps were followed. Specifically, the court examined whether the Minister had adequately considered the applicant's submissions and whether this failure resulted in a decision that was unreasonable or not justifiable in law.

The court found that the Minister had indeed failed to consider all relevant material and that this omission was a significant error. The court concluded that the Minister's failure to properly consider the submissions made by Li rendered the decision legally flawed. Consequently, the court quashed the Minister's decision and mandated that the Minister reconsider the application in accordance with the law. Additionally, the court ordered the Minister to pay Li's costs of the proceedings, fixed at $5,000.00.

Orders

Orders of the court

A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 1 December 2005.

A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.

The First Respondent shall 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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