Yang v Minister for Immigration & Anor

Yang brought proceedings against the Minister for Immigration and the Secretary of the Department of Immigration and Border Protection in the Federal Court. Yang was challenging the decision of the Migration Review Tribunal to reject his application to review the cancellation of his visa. The Tribunal had found that Yang did not comply with the visa conditions, specifically under Schedule 8 item 8202 of the Migration Regulations 1994 (Cth). The Tribunal considered that Yang had to comply with the condition in relation to two courses he was enrolled in concurrently during 2005. Yang argued that he did not need to comply with the condition in relation to both courses, and that the Tribunal erred in law by requiring him to do so. This argument was raised in Ground 1 of the application.

The court considered the argument on Ground 1 first, and found that the Tribunal had erred in concluding that Yang had to comply with the condition in relation to both courses. The court held that the Tribunal should have considered whether Yang’s enrolment in the second course was bona fide. The court also held that the Tribunal’s reasoning was deficient because it did not consider whether Yang had a reasonable excuse for not complying with the condition in relation to the second course. The court concluded that the Tribunal’s decision was vitiated by jurisdictional error. The court did not consider it necessary to hear submissions on the other grounds of the application.

The court issued a writ of certiorari quashing the Tribunal’s decision. The court also issued a writ of mandamus requiring the Tribunal to determine Yang’s application for review of the delegate’s decision. The Minister was ordered to pay Yang’s costs of the proceeding.