Liu v Minister for Immigration

This matter came before Judge Raphael of the Federal Circuit Court of Australia, concerning an application by Ms Liu seeking review of a decision by the Migration Review Tribunal. The Tribunal had affirmed a decision to cancel Ms Liu's student visa. Ms Liu contended that the Tribunal had erred in finding she had breached Condition 8202 of the Migration Regulations 1994, which requires satisfactory course attendance.

The primary legal issues before the Court were whether the Tribunal had misinterpreted and misapplied the law to the facts, and whether it had failed to complete its core function of review. Specifically, Ms Liu argued that the Tribunal erred by finding she had not complied with Condition 8202, asserting that she was not an enrolled student at Taylors College at the time of the purported certification of non-compliance. She further argued that the Tribunal failed to adequately enquire into the timing of her enrolment termination and did not give due regard to college records indicating her enrolment ceased before the certification.

Judge Raphael reasoned that the question of whether Ms Liu was an enrolled student at the time of certification was a question of fact, not law. The Tribunal had made a finding on this factual matter, which was open to it on the evidence presented, noting that the college documentation was ambivalent regarding the precise timing of the enrolment termination and the notice of non-compliance. The Court reiterated the principle that judicial review of a Tribunal decision does not involve a re-finding of facts, but rather an assessment of whether the Tribunal acted lawfully, asked itself the right questions, afforded procedural fairness, and correctly understood and applied the law. The Court found that the Tribunal's factual findings were not of such a quality as to betray a failure to undertake its task properly, and therefore, it was not open to the Court to receive fresh evidence to challenge those factual conclusions.