Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 440

FEDERAL COURT OF AUSTRALIA

Wong v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCAFC 440 TAI SHING WONG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 889 OF 2002

BLACK CJ, HILL & HELY JJ 20 DECEMBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 889 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: TAI SHING WONG

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BLACK CJ, HILL & HELY JJ

DATE OF ORDER: 20 DECEMBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 889 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: TAI SHING WONG

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BLACK CJ, HILL & HELY JJ

DATE: 20 DECEMBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a Judge of this Court (Tamberlin J) dismissing an application by the appellant (Mr Wong) for relief under s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). The relief sought is, substantially, the setting aside of a decision of the Respondent Minister ("the Minister") refusing Mr Wong's application for a subclass 560 student visa under s 501(3) of the Migration Act 1958 (Cth) ("the Act"). 2 Mr Wong is a national of the Peoples' Republic of China with residency status in Hong Kong. He is married and his wife and children presently reside in Hong Kong. He entered Australia on his own on 22 August 1999 as the holder of a visitor's visa. Shortly after his arrival he applied for a student visa to enable him to undertake a business management course. That application was successful and he was granted a sub-class 560 Student Visa which remained valid until 5 January 2001. 3 Mr Wong applied on 15 December 2000 for renewal of his student visa. The course he had commenced was of a three year duration and the application for a further student visa was required to enable him to complete the course. No decision was made on his application until 22 January 2002. He was granted a bridging visa in the period from the expiration of the initial student visa which permitted him to remain in Australia. 4 On 7 February 2002 Mr Wong was arrested and taken into custody by Immigration officers. At the time of his arrest he was handed a document notifying him of the Minister's refusal to grant him the student visa together with a copy of the Decision Record. This was the first time Mr Wong had notice of the Minister's decision. The Notice of Refusal, omitting formal parts, read as follows: "On 22 January 2002, the Minister for Immigration and Multicultural Affairs [sic] and Indigenous Affairs, acting personally under sub section 501(3) of the Migration Act (the Act), refused to grant you a subclass 560 Student Visa on the grounds that the Minister reasonably suspects that you do not pass the character test and the Minister is satisfied that refusal to grant a visa is in the national interest. The particular ground under which the Minister decided that you do not pass the Character Test is set out in Section 501(6)c(ii) of the Act. For the purposes of this section, a person does not pass the 'character test' if: (c) having regard to either or both of the following: (i)… (ii) the person's past and present general conduct; A copy of the relevant legislative provisions and the decision record concerning the refusal to grant you a visa are attached for your information. Please note that Attachments C1-10 of the decision record document were not released as they are protected under section 503A of the Act. I have also attached a copy of the Minister's direction 21 titled Direction under section 499 – Visa refusal and cancellation under section 501 of the Migration Act 1958 for your information. The decision to refuse to grant you a visa application under section 501(3) was made personally by the Minister for Immigration and Multicultural Affairs [sic] and Indigenous Affairs. This decision is not reviewable by the Administrative Appeals Tribunal. You may wish to obtain legal advice in relation to any other review options that may be available to you. You now have the opportunity to make written representations to the Minister regarding the possible revocation of the Minister's decision under Section 501C of the Act, provided you are in immigration detention. Please note a representation must be provided within seven (7) days of receipt of this letter. A copy of the relevant section of the Migration Regulations 1994 (reg 2.52) which sets out the procedures to be followed when making representations is attached for your information. …" (Emphasis added)