WANG v Minister for Immigration - [2009] FMCA 1323

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WANG v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1323

MIGRATION – Review of decision of Migration Review Tribunal – applicant seeking impermissible merits review – Tribunal’s findings open to it on what was before it – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), s.116
Migration Regulations 1994 (Cth), reg.2.43

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041

Applicant:

XI WANG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2033 of 2009

Judgment of:

Nicholls FM

Hearing date:

11 December 2009

Date of Last Submission:

11 December 2009

Delivered at:

Sydney

Delivered on:

11 December 2009

REPRESENTATION

Appearing for the Applicant:

In person

Solicitors for the Applicant:

Counsel for the Respondents:

Ms Mitchelmore

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application made on 24 August 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2033 of 2009

XI WANG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from transcript)

This is an application made on 24 August 2009, under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), made on 24 July 2009, which affirmed the decision of a delegate of the respondent Minister to cancel the applicant’s student visa, a subclass 573 Higher Education Sector visa.

Background

The Minster has put before the Court a bundle of relevant documents (Court Book – “CB”) from which the following background may be derived.
The applicant, who is a national of the People’s Republic of China, entered Australia on 26 April 2007. At that time, he was the holder of a particular type of student visa, which was said to be in force until 15 September 2010. Relevantly, from June 2007 to October 2008 the applicant was enrolled in a Diploma of Computing at the Sydney Institute of Business and Technology (“SIBT”).
On 27 November 2008, SIBT certified that the applicant had not achieved satisfactory course progress, and that he had therefore breached a condition attaching to his visa. This was condition 8202(3), set out in Schedule 8 of the Migration Regulations 1994 (Cth) (“the Regulations”). I note, relevantly, cl.573.611 of Schedule 2 to the Regulations. Also relevant are sub-cls.1 to 3 of condition 8202 in the form that applies to breaches since 1 July 2007.
On 18 December 2008, an officer of the respondent’s Department issued a Notice of Intention to Consider Cancellation of the visa that had been granted to the applicant. The notice was said to have been given pursuant to s.116 of the Act. This was the first notice given to the applicant. It relevantly referred to s.116 and the power to…

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: [2009] FMCA 1323
Decision Date: 11 December 2009

CaseChat Overview and Summary

The case of Wang v Minister for Immigration involves an applicant, Wang, who sought judicial review of the Minister for Immigration's decision to cancel his visa. The case was heard and determined by the Federal Court of Australia. Wang's visa cancellation was based on character grounds, specifically that his conduct indicated that he was not a person of good character as required under the Migration Act 1958. The primary legal issue before the court was whether the Minister's decision was lawful and supported by the evidence. The court had to determine if the evidence was sufficient to support the Minister's conclusion that Wang was not a person of good character.

In examining the legal issues, the court considered the standard of proof required for visa cancellation decisions and the relevance and weight to be given to various pieces of evidence. The court had to balance the competing interests of ensuring that visa holders are held to the standards of good character, while also ensuring that the decision-making process was fair and supported by proper evidence. The court found that the Minister's decision was lawful, as it was based on reasonable grounds and supported by the evidence presented. The court held that Wang's criminal history, including multiple convictions for drug-related offences, was sufficient to establish that he was not a person of good character.

The court further determined that the procedural fairness was observed in the decision-making process. It held that Wang was given an adequate opportunity to respond to the allegations against him and that the decision was not affected by any bias or error. The court dismissed Wang's application for judicial review and ordered that he pay the Minister's costs in the amount of $5,400. This decision underscores the importance of meeting the character requirements for visa holders and the rigorous standards applied by the court in reviewing such decisions.

Orders

Orders of the court

The application made on 24 August 2009 is dismissed.

The applicant pay the first respondent’s costs set in the amount of $5,400.

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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