Lui v Minister for Immigration - [2004] FMCA 481

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LUI v MINISTER FOR IMMIGRATION

[2004] FMCA 481

MIGRATION – Review of decision to affirm decision to cancel Student (Temporary) (Class TU) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65, 116, 121, 124, 137J, 362B
Education Services for Overseas Students Act 2000 (Cth), s.20

Migration Legislation Amendment (Overseas Student) Act 2000, Condition 8202, Item 4 of Sch 4

Migration Regulations 1994 (Cth), cl. 8202 of Sch 8

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Re Minister for Immigration; Ex parte Applicants S134/2002 (2003) 195 ALR 1
Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6
Coal & Allied Operation Pty Limited v Australian Industrial Relations Commission (2000) 174 ALR 585
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196
VBAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 205
Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21

Scargill v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 116
NAGV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 144

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Zhaou v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 748

Budiyal v Minister for Immigration & Multicultural Affairs [1998] 243 FCA

Applicant:

YAN YAN LUI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 682 of 2003

Delivered on:

24 September 2004

Delivered at:

Sydney

Hearing date:

3 August 2004

Judgment of:

Lloyd-Jones FM

REPRESENTATION

Counsel for the Applicant:

Mr Gibson

Solicitors for the Applicant:

Gil Boffa & Associates

Counsel for the Respondent:

Ms Riley

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The applicant pay the respondent’s costs set in the amount of $6,000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 682 of 2003

YAN YAN LUI

Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

This is an application for review under s.39B of the Judiciary Act 1903 (Cth) as provided in Part 8 of the Migration Act 1958 (Cth) (“the Act”) of a privative clause decision made by the Migration Review Tribunal (“the Tribunal”) under Part 5 of the Act.

The history

The applicant was born in Hong Kong in 1982 and holds a British passport. The applicant enrolled in a Certificate of Business and Information Technology at Monash College of Monash University International Centre, Monash University (herein referred to as “Monash College”), from March to October 2002.
The applicant arrived in Australia on 24 September 1999 as the holder of a Student (Temporary) (Class TU) (subclass 560) visa that was issued on 24 August 1999 and ceased on 20 February 2002. On 20 February 2002 the applicant was issued with a Student (Temporary) (Class TU)…

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: [2004] FMCA 481
Decision Date: 24 September 2004

CaseChat Overview and Summary

The case of Lui v Minister for Immigration involved an applicant who had applied for a review of a decision made by the Minister for Immigration to cancel their visa. The applicant, who was a non-citizen, sought to challenge the Minister's decision on the basis that it was unreasonable and that there were procedural errors in the decision-making process. The matter was heard and determined by the Federal Magistrates Court of Australia.

The central legal issues in the case were whether the Minister's decision was unreasonable and whether there were procedural errors in the decision-making process. The applicant argued that the Minister had failed to consider relevant information and had not properly assessed the applicant's circumstances. The respondent, the Minister for Immigration, contended that the decision was lawful and that there were no procedural errors.

The court found that the Minister's decision was not unreasonable and that there were no procedural errors in the decision-making process. The court held that the Minister had considered all relevant information and had properly assessed the applicant's circumstances. The court also found that the applicant had not demonstrated that the decision was flawed in any way. As a result, the court dismissed the application and ordered that the applicant pay the respondent's costs.

Orders

Orders of the court

The application is dismissed.

The applicant pay the respondent’s costs set in the amount of $6,000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

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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