Lin v Minister for Immigration - [2006] FMCA 1545

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LIN v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1545

MIGRATION – Student (Subclass 572)(Vocational, Education and Training Sector) visa cancellation – operation of cancellation provisions under s.116 and s.137J of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Education Services for Overseas Students Act 2000 (Cth), ss.20, 23, 24
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.116, 118A, 119, 137J, 137K, 137L, 338, 348, 349, 357A, 483A
Migration Regulations 1994 (Cth), reg.2.43

Applicant:

FANG HUA LIN

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG2205 of 2004

Judgment of:

Lloyd-Jones FM

Hearing date:

22 September 2006

Delivered at:

Sydney

Delivered on:

8 November 2006

REPRESENTATION

Counsel for the Applicant:

Mr J Gormly

Solicitor for the Applicant:

Michaela Byers, Solicitor

Advocate for the Respondents:

Mr L Leerdam

Solicitors for the Respondents:

Phillips Fox

ORDERS

The Migration Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application filed on 2 July 2004 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2205 of 2004

FANG HUA LIN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 2 July 2004 for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”).

The Tribunal decision was made on 9 June 2004, affirming a decision of the delegate of the first respondent made on 3 February 2004, to cancel the applicant’s Student (Subclass 572) (Vocational, Education and Training Sector) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.

Background

The Tribunal decision of Amanda MacDonald, reference N04/01022, provides the following background material. This is an application for review of a decision made by a delegate of the first respondent…

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: [2006] FMCA 1545
Decision Date: 8 November 2006

CaseChat Overview and Summary

Lin brought a challenge to the Minister for Immigration’s refusal to grant him a visa, contending that the refusal was unlawful and unreasonable. The court was tasked with determining whether the Tribunal's decision to uphold the Minister's decision was legally sound. The matter was heard in the Federal Court of Australia.

The court had to assess whether the Migration Review Tribunal erred in law when it dismissed Lin’s appeal against the Minister’s decision. This involved examining whether the Tribunal properly considered the evidence and applicable law, and if its decision was open to the legal principles governing such cases. The court also needed to determine whether the Minister's decision was supported by the evidence and adhered to relevant legal standards.

In its decision, the court found that the Tribunal did not err in law. The court held that the Tribunal had correctly applied the relevant legal tests and considered all pertinent evidence. The decision of the Minister was found to be lawful and reasonable, as it was based on sufficient evidence and did not contravene any statutory provisions or principles of natural justice. The court dismissed Lin's application, finding no basis to interfere with the Tribunal's decision. The court also ordered that the applicant pay the first respondent's costs and disbursements associated with the application.

Orders

Orders of the court

The Migration Review Tribunal is joined as the second respondent.

The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.

The application filed on 2 July 2004 is dismissed.

The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

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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