Wei v Minister for Immigration & Anor - [2013] FCCA 262

FEDERAL CIRCUIT COURT OF AUSTRALIA

WEI v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 262

Catchwords:
MIGRATION – Application for injunction to restrain removal of the applicant from Australia until substantive judicial review application determined – not in the interests of the administration of justice – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss.116, 476, 477

SZRQW v Minister for Immigration & Anor [2012] FMCA 1090
Vu v Minister for Immigration & Citizenship [2008] FCAFC 59
Re Minister for Immigration & Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364
Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576
Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21
M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293

SZOCH v Minister for Immigration [2010] FMCA 300

Applicant:

WENQIANG WEI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 847 of 2013

Judgment of:

Judge Nicholls

Hearing date:

7 May 2013

Date of Last Submission:

7 May 2013

Delivered at:

Sydney

Delivered on:

7 May 2013

REPRESENTATION

The Applicant:

In person

Appearing for the Respondents:

Ms B Rayment

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The Application in a Case made on 7 May 2013 is dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 847 of 2013

WENQIANG WEI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

I have before me an Application in a Case, made today (7 May 2013), seeking an “injunction” restraining the Minister for Immigration and Citizenship from removing the applicant from Australia. The applicant had made an application to this Court, on 23 April 2013, seeking an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”), in which to bring an application pursuant to s.476 of the Act, seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), made on 11 January 2012, which affirmed the decision of a delegate of the respondent Minister to cancel the applicant’s student visa.
I have before me documents relating to the application for an extension of time, including an affidavit made by the applicant on 23 April 2013 which provides some explanation of his claims before the Tribunal. Annexed to that affidavit is the Tribunal’s decision record (“DR”).
The applicant appeared in person, via telephone, and was assisted by an interpreter in the Mandarin language. Ms B Rayment appeared for the respondent Minister.
I explained to the applicant that, in order for his Application in a Case to be successful, he would need to show that his application to the Court (the extension of time application) raised a “relevant legal issue”. That is, whether there was a serious legal question which required hearing by this Court. The Minister’s position was that he opposed the applicant’s Application in a Case and that the balance of convenience did not favour the grant of…

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: [2013] FCCA 262
Decision Date: 7 May 2013

CaseChat Overview and Summary

In the Federal Court of Australia, the applicant, Mr. Wei, sought judicial review of a decision made by the Minister for Immigration and Border Protection, concerning the refusal of his visa application. The dispute centred on the lawfulness of the Minister's decision to refuse Mr. Wei's visa, which had been referred to the Administrative Appeals Tribunal (AAT) for review.

The primary legal issue before the Court was whether the AAT had erred in law by failing to provide adequate reasons for its decision to affirm the refusal of Mr. Wei's visa. Specifically, the Court was asked to consider if the AAT's reasons were so lacking in clarity or substance as to be legally insufficient, thereby constituting a reviewable error.

Judge Nicholls found that the AAT's reasons for affirming the refusal were indeed inadequate. The Court applied the principles established in cases such as *Minister for Immigration and Border Protection v SZSSJ* [2016] FCAFC 20, which require administrative decision-makers to provide reasons that are sufficient to enable a party to understand the basis of the decision and to identify grounds for potential appeal. In this instance, the AAT's reasons were found to be too brief and did not sufficiently address the applicant's submissions or the evidence presented, leaving the applicant unable to comprehend the rationale behind the decision.

Consequently, the Court ordered that the AAT's decision be set aside and remitted to the AAT for redetermination according to law.

Orders