Huang v Minister for Immigration & Multicultural Affairs [2001] FCA 901

FEDERAL COURT OF AUSTRALIA

Huang v Minister for Immigration & Multicultural Affairs [2001] FCA 901 MIGRATION - Migration Review Tribunal - Subclass 560 Student (Temporary) (Class TU) visa - whether applicant for visa has the persuasive burden of proof of essential facts - error of law in failing to determine substantial compliance with visa conditions

Migration Act 1958 (Cth) ss 65, 368, 476 Migration Regulations 1984 (Cth) Sch 2; criteria 560.213, 560.224, 560.227, condition 8202

Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436 referred to McDonald v Director-General of Social Security (1984) 1 FCR 354 referred to Cam v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 14 referred to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 referred to SHIH-HAN HUANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Q 13 OF 2001 DRUMMOND J 13 JULY 2001 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 13 OF 2001

BETWEEN: SHIH-HAN HUANG

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: DRUMMOND J

DATE OF ORDER: 13 JULY 2001

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The application be allowed.

2. The decision of the Migration Review Tribunal of 20 December 2000 affirming a decision by a delegate of the Minister to refuse a Subclass 560 Student (Temporary) (Class TU) Visa to the applicant is set aside and the matter remitted to the Tribunal, differently constituted, for determination according to law.

3. The respondent pay the applicant's costs of and incidental to the application, including reserved costs, if any, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.