WEI v Minister for Immigration - [2005] FMCA 1304

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WEI v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1304

MIGRATION – MRT decision – cancellation of student visa – breach of condition 8202 – no error found.

Education Services for Overseas Students Act 2000 (Cth), s.20
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.116, 116(1), 116(3), 359A, 483A, Pt.8
Migration Regulations 1994 (Cth), reg.2.43

Bao v Minister for Immigration [2004] FMCA 1044
Bosi v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 313
Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58
Minister for Immigration & Multicultural & Indigenous Affairs v Yu [2004] FCAFC 333
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Shrestha v Minister for Immigration & Multicultural Affairs [2001] FCA 359
Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238
Zhou v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 60

Applicant:

QIANG WEI

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG1067 of 2005

Judgment of:

Smith FM

Hearing date:

22 August 2005

Delivered at:

Sydney

Delivered on:

22 August 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms S Koya

Solicitors for the Respondents:

Phillips Fox

ORDERS

The Tribunal be joined as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1067 of 2005

QIANG WEI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which challenges a decision of the Migration Review Tribunal (“the Tribunal”) handed down on 6 April 2005. The Tribunal affirmed a decision of a delegate to cancel the applicant’s subclass 573 (Higher Education Sector) visa, which would otherwise have allowed the applicant to continue studies in Australia until March 2006.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, the limitations on my powers have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that its decision was affected by jurisdictional error. I do not have power myself to determine questions of fact going to eligibility for a visa.
The applicant has studied in Australia since 2002, and his present…

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.

Keep reading for free

Create a free CaseChat account to read WEI v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] FMCA 1304
Decision Date: 22 August 2005

CaseChat Overview and Summary

The case of WEI v Minister for Immigration is an application under section 483A of the Migration Act 1958 (Cth) challenging a decision of the Migration Review Tribunal (the Tribunal) which affirmed the cancellation of the applicant’s subclass 573 (Higher Education Sector) visa. The Tribunal’s decision was made on 6 April 2005, upholding a delegate’s decision to cancel the visa, which would have otherwise allowed the applicant to continue studies in Australia until March 2006. The application to the court is based on the applicant’s contention that the Tribunal’s decision was affected by jurisdictional error, and that it should be remitted back to the Tribunal for reconsideration.

The primary legal issue before the court was whether the Tribunal's decision to uphold the cancellation of the applicant's visa was affected by jurisdictional error. The court noted that under section 39B of the Judiciary Act 1903 (Cth), the court has the same jurisdiction as the Federal Court in matters arising under the Migration Act, but this jurisdiction is subject to limitations under Part 8 of the Act. Specifically, the court could not set aside the Tribunal's decision unless it was satisfied that the decision was affected by jurisdictional error, and it did not have the power to determine questions of fact going to eligibility for a visa. The court also highlighted that the delegate of the Minister had no power to take into account extenuating circumstances under sections 116(3) of the Migration Act and regulation 2.43 of the Migration Regulations 1994 (Cth).

The court considered the evidence and submissions provided by the parties and concluded that the Tribunal's decision was not affected by jurisdictional error. The court found that the Tribunal had properly considered the statutory provisions and that there was no procedural unfairness in the manner in which the decision was made. The court further held that the applicant's argument that the delegate had the power to take into account exceptional circumstances was not supported by the statutory provisions. As a result, the court dismissed the application and ordered that the applicant pay the first respondent's costs in the sum of $2,500.

The final orders of the court were that the Tribunal be joined as the second respondent, the application be dismissed, and the applicant pay the first respondent's costs. The court also noted that the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent would be noted. This decision underscores the limited scope of judicial review in migration matters and the importance of adhering to the statutory provisions governing visa cancellations.

Orders

Orders of the court

The Tribunal be joined as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.

The application is dismissed.

The applicant must pay the first respondent’s costs in the sum of $2,500.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which challenges a decision of the Migration Review Tribunal (“the Tribunal”) handed down on 6 April 2005. The Tribunal affirmed a decision of a delegate to cancel the applicant’s subclass 573 (Higher Education Sector) visa, which would otherwise have allowed the applicant to continue studies in Australia until March 2006. Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, the limitations on my powers have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that its decision was affected by jurisdictional error. I do not have power myself to determine questions of fact going to eligibility for a visa. The applicant has studied in Australia since 2002, and his present visa was granted in May 2003. He then enrolled in a course of study at the Sydney Institute of Business and Technology (“the Institute”). On 14 July 2004 the Institute sent the applicant a notice under s.20 of the Education Services for Overseas Students Act 2000 (Cth), which informed him that he had breached a condition of his student visa relating to satisfactory academic performance in the course in which he was enrolled. It said that the particulars of the breach were: Academic progress: … 2004/01 No. Student has been excluded from SIBT. In effect, this alleged that unsatisfactory academic results in the first semester of 2004 constituted a breach of visa conditions. The notice otherwise indicated that his attendance was in accordance with visa conditions and that his academic progress during semesters one, two and three of 2003 was not regarded as unsatisfactory. The notice informed the applicant that his visa would be automatically cancelled unless he attended for interview in the Department. It also indicated that an automatic cancellation could be revoked if the Minister was satisfied that the student did not breach the condition, or that the breach was “due to exceptional circumstances beyond the student’s control”. What the notice failed to inform the applicant was that if he avoided an automatic cancellation by attending for interview, his visa might still be cancelled by a delegate of the Minister under s.116(1) of the Migration Act, and that by reason of s.116(3) of the Act and reg.2.43 of the Migration Regulations 1994 (Cth) (“the Regulations”), the delegate would have no power to take into account extenuating circumstances even if they were “exceptional”. I have in other cases commented on the unfairness of this procedure (e.g. Bao v Minister for Immigration [2004] FMCA 1044 at [23‑24], but c.f. Zhou v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 60).