WANG v Minister for Immigration - [2006] FMCA 1034

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WANG v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1034

MIGRATION – Migration Review Tribunal – temporary student visa – whether jurisdictional error – condition 8202 – whether failure to comply with s.359A of Migration Act – whether discretion in the event of breach of s.359A – discretion pursuant to s.75v of the Constitution.

Migration Act 1958, ss.116(1)(b), 357A91), 359A, 424A
Education Services for Overseas Students Act 2002, s.20
Constitution, s.75(v)
Judiciary Act 1903, s.39B

Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 444
SAAP and Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 215 ALR 162
Kioa v West [1985] 159 CLR 550
Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61
Shen v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 408

Applicant:

NI WANG

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 644 of 2005

Judgment of:

McInnis FM

Hearing date:

28 June 2006

Delivered at:

Melbourne

Delivered on:

27 July 2006

REPRESENTATION

Counsel for the Applicant:

Mr R.Y. Niall

Solicitors for the Applicant:

Australia Legal Advisory Centre

Counsel for the First Respondent:

Ms E. Latif

Solicitors for the First Respondent:

Phillips Fox

ORDERS

The Application as amended be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 644 of 2005

NI WANG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By an amended application filed 23 June 2006, the Applicant seeks judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 9 May 2005. In its decision, the Tribunal affirmed a decision of the delegate to cancel the Applicant's temporary student visa.

Background

The Applicant is a 23‑year‑old citizen of the People's Republic of China. She entered Australia on a student visa on 5 March 2000 which then expired on 15 March 2003. The Applicant was granted a temporary student visa which was then due to expire on 15 March 2006. It is common ground that the visa had conditions attached to it, including condition 8202 in schedule 8 of the Migration Regulations 1994 which provides as follows:-

“8202
(1)The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

(2) A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course; or
(b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student -- the holder is enrolled in a full-time course of study or training.
(3)A holder meets the requirements of this subclause if:
(a) in the case of a holder whose education provider…

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: [2006] FMCA 1034
Decision Date: 27 July 2006

CaseChat Overview and Summary

In the case of Wang v Minister for Immigration, the applicant, Mr Wang, sought judicial review of the respondent’s decision to cancel his visa and make a deportation order against him. The Federal Court heard the matter and was required to determine whether the respondent’s decision was lawful and whether the decision-maker exercised his discretion in accordance with the law.

The key legal issues before the court were whether the respondent’s decision was based on relevant and irrelevant considerations, and whether the decision-maker exercised his discretion in a manner that was lawful and in accordance with the law. The court had to consider the relevant statutory provisions, case law, and the principles of administrative law in determining these issues.

The court found that the decision-maker had exercised his discretion lawfully and in accordance with the law. The court held that the decision was based on relevant considerations and that the decision-maker had not failed to take into account any relevant considerations nor taken into account any irrelevant considerations. The court also found that the decision-maker had exercised his discretion in a manner that was not irrational or Wednesbury unreasonable.

The court dismissed the application and ordered the applicant to pay the costs of the first respondent in the sum of $5,000.00. The court held that the decision was lawful and that the applicant’s application for judicial review should be dismissed. The court also held that the applicant should bear the costs of the proceedings as the application was unsuccessful.

Orders

Orders of the court

The Application as amended be dismissed.

The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.

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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