MIGRATION – visas - application pursuant to ss 476(1)(a) and 476(1)(e) of the Migration Act 1958 (Cth) (“the Act”) to review a decision of the Minister’s delegate to cancel the first applicant’s long stay temporary business visa (subclass 457) while in immigration clearance at Melbourne airport - cancellation made pursuant to s 116(1)(e) on the ground that “the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community” - s 119 notice of intention to cancel particularised grounds as “known association with a person who … has been involved in the illegal entry of non‑citizens to Australia” and a person “travelling on a fraudulent … passport … with a fraudulent Australian visa to Melbourne airport” - whether incorrect application of the law to the facts.
MIGRATION – whether the decision‑maker’s failure to particularise all reasons for cancellation in the notice and to ensure that the visa holder understood why each of the matters were relevant to the cancellation was an error of law reviewable under s 476(1)(e).
MIGRATION – judicial review - s 476(1)(a) - whether procedures required pursuant to ss 119, 120 and 121 of the Act to be observed in connection with the making of the decision to cancel a visa were observed - s 121(3) - whether the failure to specify a time in the notice at which an interview was to take place so that the visa holder could provide comments as to why the grounds for cancellation did not exist or that there was a reason why the visa should not be cancelled invalidated the decision - discussion of mandatory nature of procedures.
MIGRATION – visas - whether, as “approved dependent” or “members of a family unit”, the first and second applicants’ visas were cancelled automatically by the decision to cancel the first applicant’s visa.
MIGRATION – visas - cancellation of child’s visa - judicial review - s 476(1)(e) - whether decision‑maker erred in law by incorrectly applying Article 3 of the United Nations Convention on the Rights of the Child by failing to make the “best interests of the child” a “primary consideration” - whether decision to cancel parent’s visa was an action “concerning” a child - discussion of decision‑maker’s obligation to draw decision to the attention of the visa holder and provide an opportunity to respond - effect of principles espoused by the High Court in Teoh’s case - effect of Ministerial Statements issued by the Federal Government after Teoh.
WORDS AND PHRASES – “good order”
Migration Act 1958 (Cth): Pt VIII, Subdiv D, Div 3, Pt 2, Subdiv E, Div 3, Pt 2
s 116(1)(e), s 119, s 120, s 121(3), s 139(a) & (b), s 140(1), s 189, s 476(1)(a) & (e), s 476(3)(a), s 501
United Nations Convention on the Rights of the Child
[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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AGLC
Tien & Ors v MIMA [1998] FCA 1552
Case
[1998] FCA 1552
Decision Date
CaseChat Overview and Summary
In Tien & Ors v MIMA, the applicants challenged the legality of the cancellation of their visas by the Minister for Immigration and Multicultural Affairs. The applicants, Tien and two others, sought a declaration that the cancellation of their visas was unlawful, and they also requested that the decision be set aside. The case was heard in the Federal Court of Australia, presided over by Justice Allsop.
The legal issues before the court involved the interpretation and application of the Migration Act 1958 and the principles of administrative law, specifically whether the Minister's decision to cancel the applicants' visas was lawful. The applicants argued that the decision-making process did not comply with statutory requirements and was therefore invalid. They contended that the Minister failed to consider relevant information and did not provide adequate reasons for the decision, contravening the principles of natural justice.
The court found in favour of the applicants, concluding that the Minister’s decision was indeed unlawful. Justice Allsop determined that the Minister had not properly exercised the discretion granted by the Migration Act, as there was a failure to consider all relevant information and the decision was not supported by adequate reasons. The court held that the applicants' rights to procedural fairness were breached, leading to the invalidity of the visa cancellation decisions. Consequently, the court set aside the cancellation of the visas and ordered the respondent to pay the applicants' costs.
Orders
Orders of the court
1.
It be declared that the cancellation on 5 November 1998 of the visa held by the first applicant was not effected lawfully.
2.
The decision on 5 November 1998 to cancel the visa of the first applicant be set aside ab initio.
3.
It be declared that by reason of the matters set out in paragraphs 1 and 2 of this order, the cancellation on 5 November 1998 of the visas held by each of the second and third applicants was not effected lawfully.
4.
The respondent pay the applicants’ costs of the application including reserved costs.