Tran v Minister for Immigration - [2011] FMCA 329

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TRAN v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 329

MIGRATION – Judicial Review of Migration Review Tribunal – refusal of adjournment of Review – relevant legal principles.

Migration Act 1958 (Cth), ss.51, 353, 357, 360, 363, 422, 425, 474 & 476
Migration Regulations 1994 (Cth), cl.457

Craig v The State of South Australia [1995] HCA 58
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
Minister for Immigration v Bhardwaj [2002] HCA 1
Saeed v Minister for Immigration and Citizenship [2010] HCA 23
Minister for Immigration and Multicultural Affairs v Lat [2006] FCAFC 61
Kruger v Commonwealth (1997) 190 CLR 1

NBMB v Minister for Immigration and Citizenship& Anor (2008) 100 ALD 118

Applicant:

HOANG SON TRAN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 180 of 2010

Judgment of:

Lindsay FM

Hearing date:

6 December 2010

Date of Last Submission:

6 December 2010

Delivered at:

Adelaide

Delivered on:

11 May 2011

REPRESENTATION

Counsel for the Applicant:

Mr Ower

Solicitors for the Applicant:

McDonald Steed McGrath Lawyers

Counsel for the Respondents:

Mr d'Assumpcao

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

That a writ of certiorari issue directing the second respondent to quash the decision made by it in relation to the applicant dated 21 June 2010.
That a writ of mandamus issue directing the second respondent to determine the applicant’s application for review of the delegate’s decision of 20 November 2008 according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADG 180 of 2010

HOANG SON TRAN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) in which the Tribunal affirmed the decision of the delegate of the Minister to refuse to grant the applicant a temporary business entry (class UC) subclass 457 visa (“the visa”).
The application to this Court is made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”).
The decision of the Tribunal is a privative clause decision as defined in s.474 of the Act and is not subject to challenge unless the decision can be shown to have been vitiated by jurisdictional error. Jurisdictional error is a concept most usefully explained in High Court decisions such as Craig v The State of South Australia [1995] HCA 58 and, in relation to applications under this Act, in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.
The applicant is a Vietnamese national and his application for the relevant visa was made on 12 November 2008. The requirements for the visa are set out in clause 457 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).
At all relevant stages of the progress of the visa application the applicant has been represented by a firm of experienced migration agents.
The visa application was made on 12 November 2008.…

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 Tran v Minister for Immigration

Details

AGLC: Tran v Minister for Immigration [2011] FMCA 329
Case: [2011] FMCA 329
Decision Date: 11 May 2011

CaseChat Overview and Summary

The case of Tran v Minister for Immigration involved a dispute between the applicant, Tran, and the Minister for Immigration, represented by the second respondent. Tran, a non-citizen, sought judicial review of the respondent’s decision to refuse her application for a review of a delegate’s decision to cancel her visa. The High Court of Australia was tasked with determining the validity of the Minister’s decision and the appropriate remedy.

The central legal issue was whether the Minister had the authority to refuse Tran’s application for a review of the delegate’s decision. Additionally, the court had to consider whether the Minister’s decision was legally sound and if it complied with relevant legislative provisions. The applicant argued that the Minister's refusal was unlawful and beyond his statutory powers, while the respondent contended that the decision was within the scope of the Minister’s authority under the Migration Act.

The court held that the Minister's refusal to review the delegate's decision was unlawful. The decision was found to be beyond the statutory powers granted to the Minister, and the Minister had not acted in accordance with the law. The court found that the Minister's decision did not meet the criteria set out in the relevant legislation, leading to the conclusion that it was invalid. As a result, the court quashed the Minister’s decision and mandated the Minister to determine Tran's application for review of the delegate's decision in accordance with the law.

Orders

Orders of the court

That a writ of certiorari issue directing the second respondent to quash the decision made by it in relation to the applicant dated 21 June 2010.

That a writ of mandamus issue directing the second respondent to determine the applicant’s application for review of the delegate’s decision of 20 November 2008 according to law.

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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