Shu v MIMIA - [2003] FCA 791

FEDERAL COURT OF AUSTRALIA
Shu v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 791
MIGRATION – skilled-independent visa – decision to cancel visa based on ‘bogus document’ – whether decision maker applied correct test in considering whether document was a ‘bogus document’
MIGRATION – decision of delegate of Minister – where jurisdictional error – whether a ‘primary decision’ – whether capable of review by Federal Court
WORDS AND PHRASES – ‘bogus document’
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 97, 97A, 101, 103, 104, 107, 108, 109, 114, 474, 475A, 476, 494A, 494B, 494C, Pt 2, Div 3, subdiv C
Migration Regulations 1994 (Cth) reg 2.41
Immigration & Multicultural Affairs, Minister for v Yusuf (2001) 206 CLR 323 cited
Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24 cited
KAI FENG SHU & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N522 OF 2003
EMMETT J
23 JUNE 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N522 OF 2003

BETWEEN:

KAI FENG SHU
FIRST APPLICANT

XINGRONG WANG
SECOND APPLICANT

GUANXIONG SHU
THIRD APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

23 JUNE 2003

WHERE MADE:

SYDNEY

THE COURT:
       grants leave to the applicants to amend the statement of claim;
       grants leave to the respondent to file in Court a defence;
       dispenses with the requirement that the defence be verified;
orders that the decision of the respondent under s 109 of the Migration Act 1958 (Cth) made on 25 February 2003 to cancel the visas granted to the applicants on 4 December 2001 be set aside;

5. orders that the respondent pay the applicants’ costs.
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

N522 OF 2003

BETWEEN:

KAI FENG SHU
FIRST APPLICANT

XINGRONG WANG
SECOND APPLICANT

GUANXIONG SHU
THIRD APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

EMMETT J

DATE:

23 JUNE 2003

PLACE:

SYDNEY

REASONS FOR JUDGMENT

I have before me an application brought under s 39B of the Judiciary Act 1903 (Cth) for relief in respect of a decision of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), made on 25 February 2003 to cancel visas that had previously been granted under the Migration Act 1958 (Cth) (‘the Act’) to the applicants. The first applicant is a 32 year old citizen of the Peoples Republic of China, the second applicant is his wife, and the third applicant is his son.
By an application received by the Minister on 28 March 2001, the first applicant applied for a visa, class BN (Skilled – Independent). Information was supplied to the Minister in support of the application, including a reference from the Director of Computer Centre, China Northwest Airlines dated 26 February 2001. On 26 July 2001, the relevant…

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 Shu v MIMIA

Details

AGLC: Shu v MIMIA [2003] FCA 791
Case: [2003] FCA 791
Decision Date: 23 JUNE 2003

CaseChat Overview and Summary

In Shu v Minister for Immigration & Multicultural & Indigenous Affairs, the Federal Court of Australia considered the validity of a decision by the Minister for Immigration and Multicultural and Indigenous Affairs to cancel visas granted to the applicants under the Migration Act 1958 (Cth). The applicants, Kai Feng Shu, Xingrong Wang, and Guanxiong Shu, had applied for and were granted skilled-independent visas. However, the Minister later decided to cancel their visas based on the submission of a 'bogus document' in support of the first applicant's visa application. The central legal issue was whether the decision to cancel the visas was legally sound, particularly whether the decision-maker applied the correct legal test in determining if the document was a 'bogus document' as defined in the Act.

The Court found that the decision to cancel the visas was flawed on several grounds. Firstly, the notice of intention to cancel the visas did not strictly comply with the statutory requirements, as it failed to include a requirement for the visa holders to inform the Minister of their current residential address. However, the Court held that this non-compliance did not constitute a jurisdictional error affecting the validity of the notice. Secondly, the Court rejected the argument that the decision-maker should have considered all material on the file to determine an appropriate method for giving notice. The Court held that procedural fairness was to be afforded only to the extent provided for in the Act, and the statutory requirements were satisfied in this case. Thirdly, the Court found that the decision-maker did not properly consider one of the prescribed circumstances under the Migration Regulations 1994 (Cth) when deciding to cancel the visas. Lastly, and most critically, the Court determined that the decision-maker applied an incorrect test in assessing whether the document was 'bogus'. The decision-maker failed to consider if the document was counterfeit, altered, or obtained due to a false or misleading statement, as required by the definition of 'bogus document' in the Act.

Consequently, the Court held that the decision to cancel the visas was not a 'primary decision' under the Migration Act and was therefore reviewable. The Court set aside the decision to cancel the visas and ordered the Minister to pay the applicants' costs. The Court's decision underscores the importance of adhering to statutory requirements and applying the correct legal tests when making decisions that significantly affect individuals' rights and status.

Orders