Wu v Minister for Immigration - [2010] FMCA 1013

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WU v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 1013

MIGRATION – Review of decision of the Migration Review Tribunal – refusal of a Skilled – Independent Overseas Student (Residence) visa – “first” Tribunal decision found in favour of the applicant – Tribunal is not bound by the “first” Tribunal decision – Tribunal’s findings were open to it – Tribunal did not misunderstand or misapply the relevant law – grounds seek impermissible merits review – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.359A, 476
Migration Regulations 1994 (Cth), Sch.1, Sch.2

Thongsuk v Minister for Immigration & Anor [2007] FMCA 655
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Pasula v Minister for Immigration & Anor [2010] FMCA 219
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Choo Ai Lin v Minister for Immigration and Ethnic Affairs (1996) 45 ALD 291
Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547
NADR v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167

Applicant:

QING WU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1232 of 2010

Judgment of:

Nicholls FM

Hearing date:

6 September 2010

Date of Last Submission:

12 September 2010

Delivered at:

Sydney

Delivered on:

23 December 2010

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondents:

Ms B Tronson

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application made on 2 June 2010 is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1232 of 2010

QING WU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 2 June 2010 under s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Migration Review Tribunal (“the Tribunal’) made on 28 May 2010 to refuse a Skilled – Independent Overseas Student (Residence) visa to Mr Qing Wu (“the applicant”).
The applicant applied for this visa on 9 August 2005. (See Court Book – “CB” – CB 1 to CB 24.)

Relevant Law

In essence, this visa is available to certain overseas students who have been studying in Australia and have completed a relevant Australian educational or trade qualification.
This class of visa (“DD”) contains one Subclass, that is Subclass 880 (Skilled – Independent Overseas Student). See item 1128CA of Sch.1 to the Migration Regulations 1994 (Cth) (“the Regulations”). The relevant criteria for this Subclass are set out in Part 880 of Sch.2 to the Regulations.
For current purposes I am satisfied, nor is it in dispute, that the Tribunal…

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: [2010] FMCA 1013
Decision Date: 23 December 2010

CaseChat Overview and Summary

Wu, an individual from China, brought a legal challenge against the Minister for Immigration, seeking a review of the Minister's decision to cancel their visa on the grounds of character. The case was heard in the Federal Circuit Court of Australia. The central issue in this case was whether the Minister's decision to cancel the visa was lawful and if the applicant had provided sufficient evidence to rebut the presumption that their character was unacceptable for the purposes of holding a visa. The court needed to determine if the Minister's decision was based on proper consideration of all relevant factors and if the evidence presented by the applicant was adequate to meet the legal standards required.

The court examined the Minister's decision-making process and the evidence provided by the applicant. It was found that the Minister had considered all relevant factors and that the decision was made in accordance with the Migration Act. The court held that the presumption of unacceptable character was not rebutted by the evidence presented. The applicant's claims of hardship and the impact of visa cancellation on their family were considered but did not change the outcome of the case. The court concluded that the Minister's decision was lawful and the visa cancellation was justified.

As a result of the court's decision, the applicant's appeal was dismissed, and the visa cancellation was upheld. The court ordered that the applicant pay the Minister's costs of the proceedings, which were set at $5,865. This outcome reflects the court's determination that the Minister's decision was lawful and that the applicant's appeal was without merit.

Orders

Orders of the court

The application made on 2 June 2010 is dismissed.

The applicant to pay the first respondent’s costs set in the amount of $5,865.

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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