Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235
IMMIGRATION – visas – cancellation – notification of possible grounds for cancellation – identification of grounds – particulars – whether sufficient particularity – information underlying grounds – notification process as code of procedural fairness – compliance to be judged by reference to statutory purpose of fairness – state of satisfaction necessary in respect of existence of ground for cancellation – whether onus wrongly placed on visa holder to show cause against cancellation – whether state of satisfaction existed. Migration Act 1958 (Cth) s 116. S 457(1)(c), s 119, s 120 and s 121 Migration Regulations GU v Minister for Immigration and Multicultural Affairs [1999] FCA 991 referred to ZHAO JINGFU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 70 of 2000 FRENCH, HILL & CARR JJ 1 SEPTEMBER 2000 PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY W 70 OF 2000
BETWEEN: ZHAO JINGFU
APPELLANT
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE: FRENCH, HILL & CARR JJ
DATE OF ORDER: 1 SEPTEMBER 2000
WHERE MADE: PERTH
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The Appellant pay the Respondent's costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY W 70 OF 2000
BETWEEN: ZHAO JINGFU
APPELLANT
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE: FRENCH, HILL & CARR JJ
DATE: 1 SEPTEMBER 2000
PLACE: PERTH
REASONS FOR JUDGMENT
THE COURT:
Introduction 1 Zhao Jingfu (Mr Zhao) applied in 1997 for a temporary resident's visa under the Independent Executive category pursuant to subclass 457 in the Migration Regulations. The visa was granted in part upon the basis that Mr Zhao would be establishing a business in Australia in which he would be personally involved. The visa having been granted, he returned to China pending the processing of applications for visas for members of his family. There were complications associated with that process arising out of requirements for specialist medical examinations of one of his children. In the event, some seven months passed and he had not returned to Australia. He was interviewed at the Australian Embassy in May 1999 and subsequently a notice of intention to cancel his visa issued. Submissions were made on his behalf in relation to the mooted cancellation. In the event his visa was cancelled on the basis he no longer had a genuine and realistic commitment to establishing and being involved in a business in Australia. That is to say, one of the circumstances which permitted the grant of his visa no longer existed. 2 Mr Zhao sought judicial review of that decision which was made by a delegate of the Minister. His application was dismissed by RD Nicholson J and he now appeals to this Court. The case raises questions concerning the procedures for notification to visa holders of possible cancellation of their visas and the way in which the cancellation decision must be approached.
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