Luo v Minister for Immigration and Citizenship

[2007] FCA 207

FEDERAL COURT OF AUSTRALIA

Luo v Minister for Immigration and Citizenship [2007] FCA 207

Luo v Minister for Immigration & Anor [2006] FMCA 1622 upheld

ZHENG WEN LUO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL
NSD 2285 OF 2006

GYLES J
23 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2285 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

ZHENG WEN LUO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent  

MIGRATION REVIEW TRIBUNAL
Second Respondent  

JUDGE:	GYLES J
DATE OF ORDER:	23 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to Minister for Immigration and Citizenship.

2.The appeal be dismissed.

3.The appellant pay the costs of the first respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2285 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

ZHENG WEN LUO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent  

MIGRATION REVIEW TRIBUNAL
Second Respondent  

JUDGE:	GYLES J
DATE:	23 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The circumstances relevant to this appeal are set out in the judgment appealed from, (Luo v Minister for Immigration & Anor [2006] FMCA 1622) delivered on 1 November 2006, and I need not recite those facts. The documents filed by the appellant following that decision do not set out any ground of appeal identifying any error in the approach of the Federal Magistrate, as is pointed out and relied upon by counsel for the first respondent.

2. The arguments which have been addressed to the Court orally today are similar to the arguments which appear in the written material provided prior to the hearing and are obviously very similar to those which were put to the Federal Magistrates Court.  The appellant has complaints about the way the system has worked in his case and it may be that the combination of failure to keep in touch with his migration agent, failures by his migration agent and perhaps his inability to obtain details of the procedures required have led him into a position of disadvantage.  Even if correct, none of those matters would lead to an appeal being allowed from the decision of the Federal Magistrate.

3. There is no challenge, and could be no challenge, to the fact that the criteria for grant of the relevant visa were not present, either at the time of the original decision, or at the time of the decision by the Migration Review Tribunal (the Tribunal).  The appellant complains that if he had known of all of the criteria he might have been able to put himself in a position to qualify.  The reality is that there is no legal obligation upon the Department or the Tribunal to give advice to an applicant, such that if there is any failure to do so, that amounts to a legal error and the complaints rectified by any order that I can make. 

4. If the appellant has now put himself in a position to satisfy the relevant criteria, then he would be best advised to do what he says he would have done previously, which is to obtain some advice as to where his best interests lie and then pursue them.  I have no alternative but to dismiss the appeal.  I order that the appellant pay the costs of the first respondent. 

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:        26 February 2007

The Appellant appeared in person
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	Sparke Helmore

Date of Hearing:	23 February 2007
Date of Judgment:	23 February 2007