Mo v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MO v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1982

MIGRATION – Review of Migration Review Tribunal decision – visa – student visa – no error of jurisdictional fact – Wednesbury unreasonableness concepts not relevant to a non-discretionary decision – Tribunal did not ignore relevant considerations – applicant not denied procedural fairness – no obligation to extend time to reply to request for information – allegation of bias not proved.

Migration Act 1958, ss.65, 359, 474
Migration Regulations 1994, sch.2, cl.572.223; sch.5A, cl.5A404

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948]
1 KB 223
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59

Applicant: YINI MO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1732 of 2007

Judgment of: Cameron FM

Hearing date: 15 November 2007

Date of Last Submission: 15 November 2007

Delivered at: Sydney

Delivered on: 12 December 2007

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1732 of 2007

YINI MO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of China who, by application dated 14 March 2006, sought a student visa for the purposes of study in Australia. For a number of years prior to the lodging of that visa application Ms Mo had already been living and studying in Australia on student visas.

2. The application in question was refused by the Minister’s delegate on 26 June 2006 on the basis that Ms Mo failed to provide evidence that she met the English language proficiency requirements set out in sch.5A to the Migration Regulations 1994 (“Regulations”). Following that refusal Ms Mo applied to the Migration Review Tribunal (“Tribunal”) for review of the delegate’s decision. She was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

3. In these judicial review proceedings the Court cannot rehear Ms Mo’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

4. For the reasons which follow, the application will be dismissed.

Background facts

1. Following lodgement of Ms Mo’s application the Minister’s department wrote to her on 19 April 2006 asking, amongst other things, for evidence of English language skills sufficient to undertake her nominated course of study. That letter set out what sort of evidence would be satisfactory to meet that criterion (Bundle of Relevant Documents (“RD”) pages 25 – 26). By letter dated 16 May 2006 the applicant’s agent wrote to the department advising, amongst other things, that Ms Mo had requested the IETLS (International…