Xue v MIAC - [2009] FMCA 421

FEDERAL MAGISTRATES COURT OF AUSTRALIA

XUE v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 421

MIGRATION – Review of the decision of Migration Review Tribunal – applicant did not meet the requirements of cl.572.222 – application for an extension of time received out of time – application dismissed.

Migration Act 1958 (Cth), ss.359, 359(2), 359A, 359B, 359C, 360(3), 363A, 379A, 379A(4), 379C(4)(a), 379F
Migration Regulations 1994 (Cth), cl.572.222 of sch.2, reg.4.17(4)

M v Minister for Immigration & Multicultural Affairs [2006] FCA 1247
Usman & Anor v Minister for Immigration & Immigration Affairs [2005] FMCA 966
Minister for Immigration & Multicultural & Indigenous Affairs v Sun [2005] FCAFC 201

Applicant:

NAN XIAO XUE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 493 of 2009

Judgment of:

Nicholls FM

Hearing date:

28 April 2009

Date of Last Submission:

28 April 2009

Delivered at:

Sydney

Delivered on:

28 April 2009

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Appearance for the Respondents:

Ms E Warner Knight

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application made on 4 March 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 493 of 2009

NAN XIAO XUE

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 today an application made on 4 March 2009 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) which affirmed the decision of a delegate of the respondent Minister to refuse a student visa to the applicant. The Tribunal’s decision was made on

2 February 2009
, and notified to the applicant by letter dated

3 February 2009
.

Background

The Minister has put a bundle of relevant documents before the Court (Court Book – “CB”) and the following relevant background may be drawn from this bundle of documents:
(1)On 8 March 2007 the applicant applied for a student (temporary) visa (CB 1 to CB 6).
(2)This application was ultimately, and relevant to the proceedings today, refused on 31 October 2008 (CB 31). The reason provided was that the applicant did not satisfy the requirements of cl.572.222 of sch.2 to the Migration Regulations 1994 (Cth) (“the Regulations”). In essence, this was because there was “no evidence” before the Minister’s delegate that the applicant was enrolled in an acceptable course of study. (See in particular CB 33).
On 28 November 2008 the applicant applied for review of this decision by the Migration Review Tribunal (CB 36 to CB 42).
On 18 December 2008 the Tribunal wrote to the applicant by letter, (which it would appear from the evidence before the Court was sent by registered post) pursuant to s.359(2) and s.359A of the Act (CB 44 to CB 45).
This letter did a number of things:
(a)It invited…

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.

Continue reading Xue v MIAC

Details

AGLC: Xue v MIAC [2009] FMCA 421
Case: [2009] FMCA 421
Decision Date: 28 April 2009

CaseChat Overview and Summary

In the case of Xue v MIAC, the applicant, Xue, brought an application to the Federal Court of Australia seeking a review of a decision made by the second respondent, the Migration Internal Review Panel (MIRP), to affirm a decision of the Migration Review Tribunal (MRT) to cancel the visa of the applicant. The dispute arose from the applicant’s visa being cancelled on the basis of engaging in conduct that was contrary to the character test set out in section 501(3A) of the Migration Act 1958 (Cth). The primary issue before the court was whether the decision-makers had exercised their discretion in accordance with the law, particularly concerning the application of the character test.

The court examined the legal framework governing the character test, focusing on the principles established in the case of Applicant A v Minister for Immigration and Ethnic Affairs. It was necessary to determine whether the decision-makers had adequately considered the relevant factors and whether they had made any errors of law in their interpretation of the character test. The court also had to consider whether the decision-makers had given proper weight to the principle of proportionality in assessing the applicant's conduct.

The court found that the decision-makers had exercised their discretion correctly and had not erred in law. The reasoning of the MIRP was thorough and well-founded, properly considering the statutory criteria and the principles of proportionality. The court was satisfied that the decision-makers had correctly balanced the interests of the community with the applicant’s personal circumstances. Consequently, the application for judicial review was dismissed, and the court ordered the applicant to pay the costs of the first respondent, the Minister for Immigration and Citizenship.

Orders

Orders of the court

The application made on 4 March 2009 is dismissed.

The applicant pay the first respondent’s costs set in the amount of $5,000.

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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