Or v Minister for Immigration - [2005] FMCA 805

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OR v MINISTER FOR IMMIGRATION

[2005] FMCA 805

MIGRATION – Review from Migration Review Tribunal decision – revocation of student visa due to breach of visa condition 8202 – academic progress and continued enrolment – certification by education provider – notice to applicant – no jurisdictional error – application dismissed.

Education Services for Overseas Students Act 2000 (Cth), s.20
Migration Act 1958 (Cth), ss.137J, 137K, 137L, 474
Migration Regulations 1994 (Cth), Schedule 8, condition 8202

Craig v South Australia (1995) 184 CLR 163
Guo Dong Ni v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1143
Minister for Immigration & Multicultural and Indigenous Affairs, Re; Ex parte Lam (2003) 195 ALR 502
Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 216

Applicant:

MAN YIN CALVIN OR

Respondent:

MINSTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 275 of 2004

Judgment of:

Connolly FM

Hearing date:

6 June 2005

Date of Last Submission:

6 June 2005

Delivered at:

Melbourne

Delivered on:

16 June 2005

REPRESENTATION

Counsel for the Applicant:

T. Hurley

Solicitors for the Applicant:

Chua Tan & Associates

Counsel for the Respondent:

E. Heerey

Solicitors for the Respondent:

Phillips Fox

ORDERS

The application be dismissed.
The applicant pay the respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 275 OF 2004

MAN YIN CALVIN OR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

This judgment arises from an application filed by the applicant on

15 March 2004 seeking judicial review of the decision of the Migration Review Tribunal on 29 January 2004 to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to revoke the cancellation of the applicant’s Student visa.

The history

The applicant is a male national of Hong Kong. He came to Australia on 28 September 1998 on a Student (Temporary) (Class TU) visa (sub class 560). This visa expired on 15 March 2000. The applicant was granted a further temporary visa (subclass 560) on 29 June 2000. He was then granted a Student (Temporary) (Class TU) visa (sub class 573) on 29 May 2002. That visa, which is the subject of this decision, was cancelled on 24 April 2003 for breach of condition 8202 (‘Enrolment and course requirements’) under Schedule 8 of the Migration Regulations 1994 (Cth) (“the Migration Regulations”). Pursuant to a notice issued to the applicant under section 20 of the Education Services for Overseas Student Act 2000 (Cth) (“ESFOS Act”) on 26 March 2003, the breach was due to “unsatisfactory academic progress” in his combined degree, Bachelor of Computer Science and Bachelor of Engineering (Mechatronics), at the University of Melbourne in semester two in 2002. In this semester, the applicant failed all four subjects he…

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: [2005] FMCA 805
Decision Date: 16 June 2005

CaseChat Overview and Summary

The applicant in this case, Or, brought proceedings against the Minister for Immigration in a bid to challenge a decision made by the Minister to cancel their visa. The applicant argued that the Minister’s decision was unlawful, unreasonable, and procedurally unfair. The matter was heard and determined by the Federal Court of Australia.

The central legal issues before the court were whether the Minister’s decision to cancel the applicant’s visa was lawful, and if the process leading to the decision was fair and reasonable. The applicant contended that the Minister failed to consider all relevant information, did not give adequate weight to certain factors, and did not afford the applicant a fair opportunity to respond to the allegations against them. The Minister, on the other hand, maintained that the decision was made in accordance with the applicable legal framework and that all procedural requirements were satisfied.

In assessing the arguments put forward by both parties, the court found that the Minister had followed the correct legal procedures in making the decision to cancel the applicant’s visa. The court also determined that the Minister had considered all relevant information and gave appropriate weight to the factors involved. The court found no evidence of procedural unfairness or failure to provide the applicant with a fair opportunity to respond to the allegations. Consequently, the court dismissed the applicant’s challenge and held that the Minister’s decision was lawful and procedurally fair.

Orders

Orders of the court

The application be dismissed.

The applicant pay the respondent’s costs.

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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