YAN v Minister for Immigration - [2010] FMCA 173

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YAN v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 173

MIGRATION – Migration Review Tribunal – whether the Migration Review Tribunal sought additional information from the applicant in accordance with s.359 of the Migration Act 1958 (Cth) – whether the applicant met the mandatory statutory criterion of vocational English in accordance with reg.1.15B of the Migration Regulations 1994 (Cth).

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65(1)(a)(ii); 65(1)(b); 359; 359(2); 359B(2); 359C(1); 360; 361(1); 363A; 379A(5)(a); 379C(5); 379G; 474; pt.8 div.2
Migration Regulations 1994 (Cth), reg. 1.15B; 1.15B(3); 1.15B(4); 4.17(4); sch.2

M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247

Applicant:

KAI YAN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2803 of 2009

Judgment of:

Emmett FM

Hearing date:

9 March 2010

Date of Last Submission:

9 March 2010

Delivered at:

Sydney

Delivered on:

9 March 2010

REPRESENTATION

Applicant appeared on his own behalf

Solicitors for the Respondent:

Ms N. Johnson, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2803 of 2009

KAI YAN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated, 28 October 2009, and handed down on the same day.
The applicant is a citizen of the People’s Republic of China and arrived in Australia on 2 February 2002, on a passport valid to 2 June 2011, and was issued with a student visa on 24 March 2005.
On 30 April 2007, the applicant lodged an application for a skilled independent overseas student residence, class DD, subclass 880, visa with the Department of Immigration and Multicultural Affairs.
On 4 November 2008, a delegate of the first respondent refused the applicant the subclass 880 visa on the basis that the applicant failed to meet the criteria required for that visa in that, he was unable to satisfy the delegate that he had vocational English.
On 25 November 2008, the applicant lodged an application for a review of that decision with the Tribunal. In his application for review the applicant identified a representative who was a registered migration agent. The applicant indicated on his application form that he wished correspondence about his application to be sent to his representative, whom he nominated as his authorised recipient.
On 2 September 2009, the Tribunal wrote to the applicant’s authorised recipient by way of facsimile to the fax number identified on the applicant’s review application form. I note that the fax was transmitted at 2.30pm on 2 September 2009. The letter to the authorised recipient enclosed a letter to the applicant requesting information from the applicant that the applicant has vocational English, as defined in reg.1.15B of the Migration…

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 173
Decision Date: 9 March 2010

CaseChat Overview and Summary

The Federal Magistrates Court was asked to review a decision made by the Migration Review Tribunal regarding a visa application by Kai Yan, a Chinese national. The Tribunal had refused Kai Yan's application for a skilled independent overseas student residence visa due to his failure to meet the vocational English requirement. Kai Yan sought judicial review of the Tribunal's decision, claiming that the Tribunal did not grant him an opportunity to appear before it to give evidence and present arguments. The primary legal issue was whether the Tribunal followed the statutory process when seeking additional information from Kai Yan and whether Kai Yan met the mandatory statutory criterion of vocational English.

Federal Magistrate Emmett found that the Tribunal had correctly followed the statutory process when requesting additional information from Kai Yan. The Tribunal had sent a fax to Kai Yan's authorised recipient, in compliance with s.359 of the Migration Act 1958 (Cth) and reg. 4.17(4) of the Migration Regulations 1994 (Cth). The Tribunal also granted an extension of time for Kai Yan to provide the information, as requested by his migration agent. However, Kai Yan did not provide any further information or request another extension, and the Tribunal was entitled to proceed with its decision without further action. The Tribunal found that Kai Yan did not meet the mandatory criterion of vocational English, as his IELTS test results did not meet the required score. The Tribunal's decision was based on the evidence available and the correct application of the law.

In conclusion, the Federal Magistrates Court found that the Tribunal had complied with the statutory requirements in the conduct of its review, and there was no jurisdictional error in the Tribunal's decision. As a result, the Court had no jurisdiction to interfere with the Tribunal's decision. The proceeding before the Court was dismissed with costs.

Orders