FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LIN v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 742 |
| MIGRATION – Review of Migration Review Tribunal – whether the Tribunal in affirming a decision to cancel a visa had “cured” the defect – whether the Tribunal’s “curing” of the decision applied as of the date of the decision – whether the “curing” of a defect requires the Tribunal to focus on the particular defect in the decision – in affirming a decision the Tribunal is not making a “new” decision – the delegate’s decision operates as of the date at which it was made – application dismissed. |
| Migration Act 1958 (Cth), ss. 47, 48, 116, 119, 124, 349, 338, 476, 65, 121 Migration Regulations 1994 Regulation, reg.2.43 |
| Applicant: | KUN-YANG LIN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2531 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 13 December 2007 |
| Date of Last Submission: | 29 January 2008 |
| Delivered at: | Sydney |
| Delivered on: | 5 June 2008 |
REPRESENTATION
| Appearing for the Applicant: | Mr R Turner |
| Solicitors for the Applicant: | Parish Patience Lawyers |
| Counsel for the Respondents: | Ms R Francois |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 8 September 2006 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $9,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2531 of 2006
| KUN-YANG LIN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made under the Migration Act 1958 (Cth) on 8 September 2006 seeking review of a decision of a delegate of the first respondent made on 28 August 2006, which deemed invalid the applicant’s application for a student visa made on 24 August 2006.
At the hearing of this matter before the Court, Mr R Turner appeared for the applicant, and Ms R Francois of Counsel appeared for the respondent.
Background
The material before the Court, in addition to the application, is:
1)The affidavit of Robert Liu, solicitor in the employ of the applicant’s solicitors, of 7 September 2006, with annexures (no objection taken by the respondent).
2)The applicant’s written submissions of 6 December 2007.
3)A bundle of relevant documents filed on 14 November 2006 (the Court…
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Details
- AGLC
- Lin v MIAC [2008] FMCA 742
- Case
- [2008] FMCA 742
- Decision Date
CaseChat Overview and Summary
The case of Lin v MIAC involved Mr Kun-Yang Lin, the applicant, who sought judicial review of a decision by the Minister for Immigration and Citizenship (MIAC), represented by the respondent, to refuse his application for a student visa with permission to work. The crux of the dispute was the validity and communication of the decision to refuse the visa application, as well as the adherence to statutory requirements in the decision-making process.
The legal issues before the court encompassed the validity of the decision itself, the proper exercise of delegation under section 65 of the relevant Act, and whether the decision was properly communicated to the applicant. Central to these issues was the determination of whether the respondent correctly identified the applicant’s eligibility to apply for a student visa following the cancellation of his previous visa on 12 May 2006. Additionally, the court had to consider whether the decision-making process complied with statutory requirements, including the necessity for a valid application and the identification of the decision-maker.
In examining the decision, the court found that the letter dated 28 August 2006, which purported to refuse the visa application, did not adequately identify the decision-maker or the basis for the refusal. The reference to the visa being cancelled on 12 May 2006 was deemed unclear and potentially mistaken. The court was satisfied that the letter did not constitute a proper decision record, and therefore, the reasons for the decision could not be accurately derived from the communication provided. Furthermore, the exercise of delegation under section 65 was found to be flawed as the respondent failed to establish a valid application for a visa post-cancellation, as required by section 48 of the Act.
In conclusion, the court dismissed the application for judicial review and ordered that the applicant pay the first respondent's costs in the amount of $9,000. This decision underscores the necessity for clear and compliant decision-making processes in visa applications, particularly in the context of visa cancellations and subsequent reapplications.
The legal issues before the court encompassed the validity of the decision itself, the proper exercise of delegation under section 65 of the relevant Act, and whether the decision was properly communicated to the applicant. Central to these issues was the determination of whether the respondent correctly identified the applicant’s eligibility to apply for a student visa following the cancellation of his previous visa on 12 May 2006. Additionally, the court had to consider whether the decision-making process complied with statutory requirements, including the necessity for a valid application and the identification of the decision-maker.
In examining the decision, the court found that the letter dated 28 August 2006, which purported to refuse the visa application, did not adequately identify the decision-maker or the basis for the refusal. The reference to the visa being cancelled on 12 May 2006 was deemed unclear and potentially mistaken. The court was satisfied that the letter did not constitute a proper decision record, and therefore, the reasons for the decision could not be accurately derived from the communication provided. Furthermore, the exercise of delegation under section 65 was found to be flawed as the respondent failed to establish a valid application for a visa post-cancellation, as required by section 48 of the Act.
In conclusion, the court dismissed the application for judicial review and ordered that the applicant pay the first respondent's costs in the amount of $9,000. This decision underscores the necessity for clear and compliant decision-making processes in visa applications, particularly in the context of visa cancellations and subsequent reapplications.
Orders
Orders of the court
1.
The application made on 8 September 2006 is dismissed.
2.
The applicant pay the first respondent’s costs set in the amount of $9,000.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The “decision” of 28 August 2006 requires some scrutiny as to its nature, and purportedly what was done. Both parties have put before the Court a letter dated 28 August 2006 (see annexure “E” to the affidavit of Mr Liu, and annexure “A” to the affidavit of Ms Mafessanti.”) The letter is in the following terms:“Dear Mr Kun-Yang LIN,Re: Decision on 157P application I refer to your application for a student visa with permission to work lodged with the Department on 24th August 2006.I regret to advise that your application for a student visa with permission to work has been refused. The reasons behind this decision are listed below:-Your Student visa was cancelled on 12th May 2006. In order to be granted a student visa with permission to work you must currently hold a valid Student visa.If you have any enquires in regard to this matter please contact the NSW Student Centre on 131 881. Yours Sincerely, Student Admin TeamNSW Student CentreDIMA Sydney CBD” It does not appear that any separate decision record was created. The reasons for the decision, therefore, can only be derived from what is stated in this notice to the applicant. The reference to “the visa was cancelled on 12th May 2006” is unclear. There is no evidence before the Court that the applicant’s student visa was cancelled on that date, or that the applicant held any other student visa that had been cancelled on that date. On what is before the Court, I am satisfied that this is a mistaken reference to the date of the grant of the visa which was cancelled. That is, the visa which was cancelled was the student visa granted to the applicant on 12 May 2006. On its face, the letter states that the “application for a student visa ... has been refused.” The letter makes no reference as to who made the decision. The identity of the author (let alone, the identity of the decision maker) remains unstated. The evidence of Ms Mafessanti (at [8] of her affidavit), indicates that the “decision,” which was conveyed to the applicant by this letter, was sent to the applicant by an employee of the respondent’s department, who was purportedly empowered to act pursuant to s.65 of the Act. This suggests that a decision was made to refuse the visa in that the relevant employee was said to have been acting pursuant to s.65. Therefore, they acted to refuse an application for a visa. The relevant terms of s.65 are as follows: (1) After considering a valid application for a visa, the Minister: (a) if satisfied that: …is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa.” If it is the case that the Minister seeks to rely on the purported author of the letter of 28 August 2006, as having exercised delegation pursuant to s.65 of the Act, then the exercise of this power presupposes: “a valid application for a visa.” The Minister is required to consider a valid application for a visa (s.47(1)), but s.48 relevantly provides that a person whose visa has been cancelled may only apply for particular visas that are prescribed for the purposes of s.48, and not for a visa of any other class.
Ratio Decidendi
Legal Principle Established
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