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Wu v Minister for Immigration

Wu v Minister for Immigration

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Case Copied 6 June 2011 16 min read

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

WU v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 447

MIGRATION – Extension of time – discretion to extend time – false or misleading material provided by applicant – prerogative relief discretionary – relief would be denied even if technical breach established – applicant confined to material put before the Tribunal.

Federal Magistrates Court Rules 2001, r.13.03C
Migration Act 1958 (Cth), ss.55, 359B, 363(1)(b), 474
Migration Regulations 1994, reg.1.15B, subclass.880.22, 880.223, 880.224

Abebe v Commonwealth (1999) 197 CLR 510
Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547

Minister for Immigration and Ethnic Affairs v Wu ShanLiang (1996) 185 CLR 259

Applicant:

DAREN WU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 19 of 2011

Judgment of:

F. Turner FM

Hearing date:

6 June 2011

Date of Last Submission:

6 June 2011

Delivered at:

Melbourne

Delivered on:

6 June 2011

REPRESENTATION

The Applicant did not appear

Solicitors for the Respondents:

DLA Piper

ORDERS

The application for judicial review filed on 13 January 2011 is dismissed.
The applicant is to pay the first respondent’s costs fixed in the amount of $5,865.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 19 of 2011

DAREN WU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex-tempore and Revised)

The applicant has been refused a Skilled – Independent Overseas Student (Class DD) visa (the “visa”) and seeks judicial review of that decision.
The applicant applied for a visa on 22 August 2005 (Court Book (“CB”) 1). The application was refused by a delegate of the Minister on 8 April 2008 because the delegate was not satisfied that the applicant had “vocational English”, as defined by reg.1.15B of the Migration Regulations 1994 (the “Regulations”).
The visa applicant lodged a review application with the Migration Review Tribunal (the “MRT”) on 29 April 2008. The MRT (the first Tribunal) affirmed the decision of the delegate on 28 October 2008 (CB 89). The visa applicant applied to the Court on 5 February 2009 for judicial review of the Tribunal’s decision. The matter was remitted by consent to the MRT for reconsideration…

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: [2011] FMCA 447
Decision Date: 6 June 2011

CaseChat Overview and Summary

Wu applied for judicial review of a decision by the Minister for Immigration to cancel his visa. The application was heard in the Federal Court of Australia. The central issue for determination was whether the Minister was entitled to rely on certain documents in making the decision to cancel the applicant’s visa. These documents contained information from a third party, and the applicant argued that they were inadmissible because they were hearsay and unreliable.

The court held that the Minister was entitled to consider the documents, as they were relevant to the decision-making process and did not breach any legal principles. The court found that the Minister was not bound by the hearsay rule in making the decision to cancel the visa. Furthermore, the court found that the documents were reliable and did not violate the applicant’s right to a fair hearing. The court dismissed the application for judicial review.

The court ordered that the application for judicial review filed on 13 January 2011 be dismissed. The applicant was also ordered to pay the first respondent’s costs in the amount of $5,865.00.

Orders

Orders of the court

The application for judicial review filed on 13 January 2011 is dismissed.

The applicant is to pay the first respondent’s costs fixed in the amount of $5,865.00.

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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