Liu v Minister for Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

LIU v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 936
Catchwords:
MIGRATION – Review of decision Migration Review Tribunal decision – Refusal of grant of a Student (Temporary) (Class TU) visa – Applicant failed to establish there were exceptional reasons for the grant of a visa – Application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), cl.570.227

Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531
Deacon v Castle [2013] FCCA 691
Hasim v Attorney-General of the Commonwealth [2013] FCA 1433
Kim v Minister for Immigration & Anor [2008] FMCA 1577
Kim v Minister for Immigration and Citizenship [2009] FCA 161
Nikac & Ors v Minister for Immigration, Local Government and Ethnic Affairs   (1988) 20 FCR 65

Maan v Minister for Immigration and Citizenship& Anor (2009) 179 FCR 581
Minister for Immigration and Multicultural Affairs v Jia Le Geng (2001) 205 CLR 507
Patel v Minister for Immigration and Citizenship [2010] FCA 918
Reynolds v Minister for Health & Anor (2010) 247 FLR 425
SZQFV v Minister for Immigration & Anor [2011] FMCA 927

Applicant: HAOJIE LIU
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: SYG 1069 of 2013
Judgment of: Judge Lloyd-Jones
Hearing date: 7 March 2014
Delivered at: Sydney
Delivered on: 16 May 2014

REPRESENTATION

The Applicant: The Applicant appeared in person with the assistance of a Mandarin interpreter.
Solicitor for the First Respondent: Mr R. Ray of Clayton Utz
The Second  Respondent: The Second Respondent filed a submitting notice of appearance.

ORDERS

  1. The name of the First Respondent be amended to read “Minister for Immigration and Border Protection”.

  2. The application filed on 17 May 2013 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1069 of 2013

HAOJIE LIU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

  1. This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Migration Review Tribunal (the “Tribunal”), being MRT Case Number 1109629, a decision of Tribunal Member S. Durvasula dated 23 April 2013, affirming the decision of a delegate of the Minister for Immigration and Border Protection (at the time of the decision the Minister for Immigration and Citizenship) (the “Minister”), to refuse to grant the applicant a Student (Temporary) (Class TU) visa.

  2. In accordance with the Court’s orders made on 18 June 2013 the solicitors for the first respondent, the Minister, were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”), and has been marked Exhibit “A”.  

  3. By orders made by the Court on 18 June 2013, the applicant…

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Details
Case
[2014] FCCA 936
Decision Date

CaseChat Overview and Summary

In *Liu v Minister for Immigration*, the applicant sought judicial review of a decision by the Migration Review Tribunal (MRT) to affirm the refusal of a Student (Temporary) (Class TU) visa. The primary dispute concerned whether the applicant had established exceptional reasons justifying the grant of the visa, a requirement under the relevant migration legislation. The matter came before Lloyd-Jones J in the Federal Court of Australia.

The central legal issue before the Court was whether the MRT had erred in law in its assessment of the applicant's claim that exceptional circumstances warranted the grant of the visa. This involved considering whether the MRT had properly applied the relevant legislative provisions and whether its findings of fact were supported by evidence, particularly in relation to the applicant's circumstances and their alleged exceptional nature.

Lloyd-Jones J found that the MRT had not erred in law. The Court reasoned that the Tribunal had undertaken a proper assessment of the evidence before it and had correctly concluded that the circumstances presented by the applicant did not meet the threshold of "exceptional reasons" as contemplated by the Migration Act 1958 (Cth) and associated regulations. The Tribunal's decision was therefore upheld.

The application was dismissed, and the applicant was ordered to pay the first respondent's costs. The Court also ordered that the name of the First Respondent be amended to read “Minister for Immigration and Border Protection”.

Orders

Orders of the court

ORDERS

1. The name of the First Respondent be amended to read “Minister for Immigration and Border Protection”.

2. The application filed on 17 May 2013 be dismissed.

3. 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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