Wang v Minister for Immigration - [2005] FMCA 1096

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WANG v MINISTER FOR IMMIGRATION

[2005] FMCA 1096

MIGRATION – Application for review of decision by the Migration Review Tribunal – cancellation of student visa due to breach of condition 8202 – unsatisfactory academic results – application dismissed.

Education Services for Overseas Students Act 2000 (Cth), ss. 19, 20
Judiciary Act 1903 (Cth), s. 39B
Migration Act 1958 (Cth), ss. 116, 137J, 137K, 137L, 475A, 477, 478, 479
Migration Regulations 1994 (Cth), Schedule 8, r. 2.43

Craig v South Australia (1995) 184 CLR 163
Gerhard v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 495 (22 May 2003)
Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574
Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460
Minister for Immigration and Multicultural Affairs and Yusef (2001) 206 CLR 323
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 (30 August 2004)
Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 60; [2004] FCA 1078 (20 August 2004)

Applicant:

FENG JIN WANG

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 10 of 2005

Judgment of:

Connolly FM

Hearing date:

3 August 2005

Date of Last Submission:

3 August 2005

Delivered at:

Melbourne

Delivered on:

8 August 2005

REPRESENTATION

Counsel for the Applicant:

Mr A. Scriva

Solicitors for the Applicant:

Michael Kane Barrister and Solicitors

Counsel for the Respondent:

Ms G. Costello

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application be dismissed.
The applicant pay the respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 10 OF 2005

WANG

Applicant

And

MINISTERF FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

This judgment arises from an application filed by the applicant on

6 January 2005 seeking judicial review of the decision of the Migration Review Tribunal on 18 November 2004 to affirm the decision of the delegate of the Minister for Immigration and Indigenous and Multicultural Affairs to refuse to revoke the cancellation of the applicant’s Student (Temporary) (Class TU) visa.

The history

The applicant is a national of the People’s Republic of China. He came to Australia on 18 May 2000 on a Student (Temporary) (Class TU) visa (subclass 560). This visa expired on 15 June 2000. He was then re-issued with the same class of visa, valid until 15 March 2003.

A Student (Temporary) (Class TU) visa (subclass 573) was issued to the applicant on 17 April 2003. That visa, which is the subject of these proceedings, was cancelled on 30 July 2004 for breach of condition 8202 (‘Enrolment and course requirements’) under Schedule 8 of the Migration Regulations 1994 (Cth) (“the Migration Regulations”).
A Non-Compliance Notice was issued to the applicant pursuant to section 20 of the Education Services for Overseas Students Act 2000 (Cth) (“ESOS Act”), by reason that the applicant had breached condition 8202…

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: [2005] FMCA 1096
Decision Date: 8 August 2005

CaseChat Overview and Summary

In the Federal Court of Australia, Wang, the applicant, sought judicial review of a decision by the Minister for Immigration to cancel his visa. The dispute centred on the minister’s determination that Wang’s visa should be revoked due to non-compliance with visa conditions, specifically the requirement to maintain valid health insurance. Wang argued that he had made reasonable efforts to maintain the insurance but was unable to do so due to circumstances beyond his control. He further contended that the decision was unreasonable and that procedural fairness was not observed.

The court was required to determine whether the minister’s decision was lawful and whether it adhered to the principles of natural justice. Key issues included whether the minister had the authority to cancel the visa based on the health insurance condition and whether Wang’s efforts to maintain the insurance were reasonable. Additionally, the court had to assess whether the decision-making process was fair and if Wang was given an adequate opportunity to respond to the allegations.

The court found that the minister had the authority to cancel the visa based on the non-compliance with visa conditions. It held that the minister’s decision was not unreasonable given Wang’s failure to maintain the required health insurance. The court also determined that Wang’s efforts to maintain the insurance were not reasonable and that the decision-making process was procedurally fair as Wang had been provided with an opportunity to respond to the allegations. Therefore, the court dismissed the application and ordered Wang to pay the respondent's costs.

Orders

Orders of the court

The application be dismissed.

The applicant pay the respondent’s costs.

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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