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Meng v MIAC

Meng v MIAC

Case [2007] FMCA 173 23 February 2007

Immigration & Refugee Law

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

MENG v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 173

MIGRATION – Review of Migration Review Tribunal decision – refusal of a Partner (Migrant) (Class BC) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.46, 47(3), 65, 67, 68, 69, 101, 105, 109, 359A, 483A
Migration Regulations 1994 (Cth), reg.1129(1), 1220A

Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Minister for Immigration v Guo & Anor (1997) 191 CLR 559
NADR v Minister for Immigration [2003] FCAFC 167
SAAP v Minister for Immigration [2005] HCA 24
SCAA v Minister for Immigration [2002] FCA 668

Applicant:

SU PING MENG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 877 of 2005

Judgment of:

Lloyd-Jones FM

Hearing date:

4 October 2006

Delivered at:

Sydney

Date of Last Submission:

12 December 2006

Delivered on:

23 February 2007

REPRESENTATION

Advocate for the Applicant:

The applicant appeared in person with the assistance of a Mandarin interpreter

Counsel for the Respondents:

Ms T Wong

Solicitors for the Respondents:

Ms E Palmer, Clayton Utz Solicitors

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 Citizenship’.
The application filed on 11 April 2005 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

SYG 877 of 2005

SU PING MENG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

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 11 April 2005 for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”). The Tribunal decision was made on 18 March 2005, affirming a decision of the delegate of the first respondent made on 25 November 2003, to cancel the Partner (Migrant) (Class BC) visa held by Ms Meng. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].

Background

The Tribunal decision of Maritsa Eftimiou, reference N03/08015, contains the following background information. The applicant applied for a subclass 309 (spouse) visa on 16 November 2000 on the basis of her spousal relationship with Mr Simo Ninkovic (the sponsor). The applicant claimed to have been introduced to Mr Ninkovic by her brother-in-law in 1997 or 1998. They maintained regular contact by telephone and…

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.

Continue reading Meng v MIAC

Details

AGLC: Meng v MIAC [2007] FMCA 173
Case: [2007] FMCA 173
Decision Date: 23 February 2007

CaseChat Overview and Summary

The case of Meng v MIAC involves the applicant, Mr Meng, who sought judicial review of a decision made by the Minister for Immigration and Citizenship, represented as the first respondent. The decision in question pertained to the refusal of Mr Meng's application for a protection visa. The Migration Review Tribunal, acting as the second respondent, had also dismissed his appeal against the visa refusal. Mr Meng challenged the decisions of both respondents in the Federal Court of Australia. The core legal issues before the court were whether the Minister's decision to refuse the visa was legally sound and whether the Tribunal's decision to dismiss the appeal was just and fair.

The court examined the decision-making process of both the Minister and the Tribunal, focusing on whether there were any jurisdictional errors or procedural irregularities. The court held that the Minister's decision was not tainted by jurisdictional error, as it was based on proper consideration of the evidence and applicable law. Regarding the Tribunal's decision, the court found no error in the Tribunal's determination, affirming that it had adequately considered the evidence and applied the correct legal principles. Consequently, the court dismissed the applicant's application for judicial review.

In light of the findings, the court ordered the Migration Review Tribunal to be joined as the second respondent in the proceedings. Additionally, the court directed that the name of the first respondent be amended to reflect the current title, 'Minister for Immigration and Citizenship'. The application for judicial review, filed on 11 April 2005, was dismissed. Lastly, the court ordered Mr Meng to 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 Citizenship’.

The application filed on 11 April 2005 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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Meng v MIAC [2007] FMCA 173

Most Recent Citation

1802717 (Migration) [2019] AATA 4810

Cases citing this decision · 4 of 4 shown

2305259 (Migration)
[2023] AATA 1332 Para 7

…ever, that the powers on review will depend upon the powers that were available to the primary decision-maker: ss 349(1), 415(1). [8] Meng v MIAC [2007] FMCA 173 [9] In MHA v CSH18 [2019] FCAFC 80, the Full Federal Court held that by s 414(1) of the Act ([pt 7]; s 348(1) [pt 5]), the Tribunal must review a purport…
2305515 (Migration)
[2023] AATA 1333 Para 8

…ever, that the powers on review will depend upon the powers that were available to the primary decision-maker: ss 349(1), 415(1). [8] Meng v MIAC [2007] FMCA 173 [9] In MHA v CSH18 [2019] FCAFC 80, the Full Federal Court held that by s 414(1) of the Act ([pt 7]; s 348(1) [pt 5]), the Tribunal must review a purport…
2215968 (Migration)
[2022] AATA 4687 Para 14

…ver, that the powers on review will depend upon the powers that were available to the primary decision-maker: ss 349(1), 415(1). [20] Meng v MIAC [2007] FMCA 173 [21] In MHA v CSH18 [2019] FCAFC 80, the Full Federal Court held that by s 414(1) of the Act ([pt 7]; s 348(1) [pt 5]), the Tribunal must review a purpor…
1802717 (Migration)
[2019] AATA 4810 Para 5

…The Court in Meng v MIAC [2007] FMCA 173 held that a visa may be cancelled even if the visa was not validly granted. The Court at [15] endorsed the decision in Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57 which held that the effect of s.69 of the Act is that once a visa is granted, it continues to…

View all 4 citing cases →

Cases cited in this decision · 9 of 9 shown

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] HCA 24 Para 2

…unal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].…
NADR v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCAFC 167 Para 7

…o it on the evidence before it. It is not for this Court to engage in a merits review of that fact finding operation. NADR v Minister for Immigration [2003] FCAFC 167 at [9] states: …The finding of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not w…
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs
[2002] FCA 668 Para 1

…The authorities are clear that one cannot extrapolate bias from an adverse finding alone, see SCAA v Minister for Immigration [2002] FCA 668 at [38] per Von Doussa J: In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons…
SBAN v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 591 Para 1

…tant information relating to central matters for determination (Sun Zhan Qui and SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 at [26] - [27] an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and…
Re Minister for Immigration and Multicultural Affairs; Ex parte MIAH
[2001] HCA 22 Para 3

…e effect of s.69 is that a visa, once granted, continues to be valid unless and until it is set aside: Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57.…
Abebe v the Commonwealth
[1999] HCA 69 Para 7

…view. Furthermore, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137]. The Tribunal understood its task and proceeded to make findings on the evidence placed before it. There is no error apparent in the Tribunal’…
Minister for Immigration and Ethnic Affairs v Guo
[1997] HCA 22 Para 8

…rself in as much detail as necessary to establish them. It is for the applicant to make out her own case: Minister for Immigration v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J. As the Tribunal only had before it the facts as alleged by the applicant and provided in writing and orally at the hearing, the Tribuna…
Minister for Immigration and Ethnic Affairs v Wu Shan Liang
[1996] HCA 6 Para 7

…unal and not within the jurisdiction of the Court. It would have been in contravention of Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 for the Court to have engaged in merits review. Furthermore, there is no error of law, let alone a jurisdictional error, in the Tribunal making…
Kopalapillai v Minister for Immigration and Multicultural Affairs
(1998) FCR 547 Para 8

…pplicant’s claim. All of the matters taken into account by the Tribunal in arriving at its conclusion were probative of the issues before it: Kopalapillai v Minister for Immigration (1998) 86 FCR 547. Accordingly, the Tribunal made no error in its approach to reviewing the decision of the delegate. The Tribunal’s conclusion concerning the facts…

Legislation cited in this decision · 3

Migration Act 1958 (Cth)
101, 105, 109, 359A, 46, 47(3), 483A, 65... 12 mentions (from Para 1)
Migration Regulations 1994 (Cth)
1129(1), 1220A 3 mentions (from Para 4)
Judiciary Act 1903 (Cth)
39B 2 mentions (from Para 1)