Sun v Minister for Immigration - [2004] FMCA 582

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SUN v MINISTER FOR IMMIGRATION

[2004] FMCA 582

MIGRATION – Review of Migration Review Tribunal's decision to grant the applicant an Employer Nomination (Residence) (Class BW) visa – Procedural Fairness – invitation under s.359 of the Migration Act to give additional invitation – invitation under s.359A of the Migration Act to comment on information – alleged failure to give information or comments within periods specified invitations – whether invitations valid, whether periods within which to give information or comments validly extended by Tribunal – whether period by which the Tribunal may extend period for giving information or comments can be extended for a greater or lesser period than 28 days – whether applicant was entitled to appear before the Tribunal – refusal of Tribunal to allow applicant to appear before it – effect of request for extension of time to provide additional information or comments – meaning and effect of s.360(2)(c) of the Migration Act – jurisdictional error for denial of procedural fairness.

Migration Act 1958
Migration Regulations 1994
Migration Legislation Amendment (Procedural Fairness) Act 2002

NAAV v MIMIA [2002] FCAFC 228
R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1
MIMIA v Awan (2003) FCAFC 140
Landers v MIMIA (2003) FMCA 223
Haque v MIMA (2001) FCA 1077
Patel v MIMIA (2003) FCA 115
Nadeszhkin v MIMIA (2004) FMCA 434

Applicant:

JING SHAN SUN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

WZ 56 of 2004

Delivered on:

10 September 2004

Delivered at:

Perth

Hearing Date:

6 September 2004

Judgment of:

Walters FM

REPRESENTATION

Counsel for the Applicant:

Mr H.N. Christie

Solicitors for the Applicant:

Christie & Strbac

Counsel for the Respondent:

Mr J.D. Allanson

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The Court declares that the decision of the Migration Review Tribunal made on 30 September 2003 is invalid and of no effect.
A writ of certiorari shall issue, quashing the decision of the Migration Review Tribunal.
A writ of mandamus shall issue, requiring the Migration Review Tribunal to redetermine the matter according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ 56 of 2004

JING SHAN SUN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a national of the People's Republic of China, who entered Australia in May 1999. He was then the holder a Tourist (Short Stay) visa. He was granted a Temporary Business (Long Stay) visa in December 1999 — which visa expired in June 2000.
On 15 June 2000, the applicant applied for an Employer Nomination (Residence) (Class BW) visa. His application was accompanied by an application for employer nomination by a Chinese restaurant in Western Australia for the position of chef. The employer nomination application was approved in October 2000.
On 12 March 2001, a…

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: [2004] FMCA 582
Decision Date: 10 September 2004

CaseChat Overview and Summary

The case involved Sun, the appellant, and the Minister for Immigration, the respondent. The dispute centred around a decision by the Migration Review Tribunal, which had determined Sun's visa application. The matter was brought before the court, which was required to review the decision made by the tribunal. The central issue before the court was whether the Migration Review Tribunal's decision was legally sound and in accordance with the relevant statutes and principles. Specifically, the court had to assess whether the tribunal had properly applied the law and exercised its discretion appropriately in making its decision.

The court found that the Migration Review Tribunal had erred in its interpretation and application of the relevant legislation. The tribunal had failed to consider certain key provisions of the law, and had not appropriately exercised its discretion. This was a significant error, as it led to an outcome that was not in accordance with the law. The court held that the tribunal's decision was therefore invalid and of no effect. As a result, the court ordered that a writ of certiorari be issued to quash the tribunal's decision, and a writ of mandamus be issued to require the tribunal to redetermine the matter according to law.

In summary, the court found that the Migration Review Tribunal had made an error in its decision, which was not in accordance with the law. The court quashed the tribunal's decision and ordered it to be redetermined according to law. This case highlights the importance of tribunals properly applying the law and exercising their discretion appropriately in making their decisions. It also serves as a reminder of the court's role in reviewing tribunal decisions to ensure they are legally sound.

Orders

Orders of the court

The Court declares that the decision of the Migration Review Tribunal made on 30 September 2003 is invalid and of no effect.

A writ of certiorari shall issue, quashing the decision of the Migration Review Tribunal.

A writ of mandamus shall issue, requiring the Migration Review Tribunal to redetermine the matter according to law.

Background

Background to the litigation

Full text does not contain this section.

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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