A writ of certiorari be issued directed to the second respondent, quashing the decision of the second respondent dated 24 May 2006.
A writ of mandamus be issued directed to the second respondent requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 21 May 2005.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY
SYG 1674 of 2004
SHAO YANG ZHANG
Applicant
And
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Introduction
By a further amended application dated 17 August 2006, the applicant seeks review of the decision of the Migration Review Tribunal (“Tribunal”) handed down on 24 May 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“Minister”) dated 21 May 2005 refusing the applicant’s application for a distinguished talent (resident) (Class BX) visa dated 28 March 2005.
Background facts
In his visa application the applicant described his professional background and standing as follows:
I have written and published about twenty essays, research papers on various subjects, especially about Australian culture. Two collections of poems by Australian poets were translated and published in China. My PhD dissertation is on an Australian poet – Kevin Hart and Australian culture which involve the topics of philosophy, theology and literature.
I was trained as a teacher teaching English as a second language. I was teaching English at a high school in China for six years, and later I was working (first as a lecturer, then associate professor) at an English Department of a tertiary institution in China for nearly ten years. Now I am employed as a part-time tutor at the University of Western Sydney. (Court Book “CB” pages 15 & 18).
Apparently attached to that application were letters from Professor Sun, Hanyun; Associate Professor Peter Skrzynecki; Professor Ivor Indyk;…
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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AGLC
Zhang v MIMA [2007] FMCA 664
Case
[2007] FMCA 664
Decision Date
CaseChat Overview and Summary
The case of Zhang v MIMA involved the applicant, a Chinese national, who sought judicial review of a decision made by the Migration Review Tribunal (MRT) to dismiss his application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (MIMA). The applicant argued that the MRT had erred in its interpretation of the Migration Act and failed to consider relevant evidence in making its decision.
The central legal issue before the court was whether the MRT had correctly applied the law in dismissing the applicant's application for review and, if not, whether the court should order the MRT to reconsider the application. The court was required to determine whether the MRT had erred in law by failing to consider relevant evidence and by misinterpreting the provisions of the Migration Act.
In considering the matter, the court found that the MRT had indeed erred in law by failing to consider relevant evidence and by misinterpreting the provisions of the Migration Act. The court held that the MRT's decision was flawed and that it should be quashed. The court further held that the MRT was required to determine the applicant's application for review according to law and that a writ of mandamus should be issued to compel the MRT to do so. The court issued a writ of certiorari to quash the MRT's decision and a writ of mandamus to require the MRT to determine the applicant's application for review according to law.
Orders
Orders of the court
1.
A writ of certiorari be issued directed to the second respondent, quashing the decision of the second respondent dated 24 May 2006.
2.
A writ of mandamus be issued directed to the second respondent requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 21 May 2005.