Wu v Minister for Immigration - [2019] FCCA 738

FEDERAL CIRCUIT COURT OF AUSTRALIA

WU v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 738

Catchwords:
MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a Delegate of the Minister to cancel a Student visa under s.116 of the Migration Act 1958 (Cth) for non-compliance with Condition 8202 – applicant did not respond to Notice of Intention to Consider Cancellation of Student visa – applicant claims compelling reason of homosexuality in judicial review application – applicant did not raise claim of homosexuality at the Administrative Appeals Tribunal hearing – no jurisdictional error identified – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), s.116

Migration Regulations 1994 (Cth)

Cases cited:

Alexander v Australian Community Pharmacy Authority (2010) 265 ALR 424
CJR17 v Minister for Immigration & Border Protection [2018] FCA 1627
Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162
NABE v Minister for Immigration (No.2) (2004) 144 FCR 1
SZMDB v Minister for Immigration and Citizenship (2008) 105 ALD 499

Applicant:

HANG WU

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3384 of 2017

Judgment of:

Judge Dowdy

Hearing date:

15 May 2018

Delivered at:

Sydney

Delivered on:

1 April 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent:

Ms S. Given

Solicitors for the First Respondent:

HWL Ebsworth

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 3 November 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3384 of 2017

HANG WU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant in this proceeding is a female citizen of China aged 26 years, having been born on 19 January 1993.
By Application filed in this Court on 3 November 2017 she seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 4 October 2017, which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 23 August 2016, cancelling her Student (Temporary) Higher Education Sector (Class TU) (Subclass 573) visa (Student visa).

Background

The Applicant was granted the Student visa on 13 November 2013 which expired on 29 December 2016 and was subject to Condition 8202 of Sch.8 to the Migration Regulations 1994 (Cth) (Regulations), which by force of Condition 8202(2)(a) required her to be enrolled in a full-time registered course of study.
By Notice of Intention to Consider Cancellation (NOICC) of the Student visa dated 5 August 2016 the Department of the Minister advised the Applicant that she appeared to be in breach of Condition 8202(2)(a) in that she had not been enrolled in a full-time registered course of study since 10 February 2016 and because of this the Minister was empowered…

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: [2019] FCCA 738
Decision Date: 1 April 2019

CaseChat Overview and Summary

The applicant, Wu, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the delegate of the Minister's decision to cancel Wu's student visa under section 116 of the *Migration Act 1958* (Cth) due to non-compliance with Condition 8202. Wu had not responded to the Notice of Intention to Consider Cancellation of Student visa. The application for judicial review was heard by Dowdy J in the Federal Court of Australia.

The central legal issue before the Court was whether there was any jurisdictional error in the AAT's decision. The applicant contended that a compelling reason for their non-compliance, namely their homosexuality, constituted a basis for judicial review. However, this claim had not been raised before the AAT during its hearing.

Dowdy J found no jurisdictional error. The Court reasoned that the applicant's claim regarding homosexuality was a new ground not presented to the AAT. As the AAT's decision was based on the material before it, and no jurisdictional error was identified in its process or findings, the Court could not intervene. The applicant's failure to raise this significant issue at the primary review stage meant it could not form the basis for a successful judicial review application.

Consequently, the application for judicial review was dismissed.

Orders