Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 771

FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 771

MIGRATION – earlier judgment set aside decision of Tribunal but did not remit the matter for re-hearing – appropriate consequential relief in unique circumstances of the case.

Migration Act 1958 (Cth) ss 348(1), 481(c), 481(d) MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v HOU N 1324 of 2001 CONTI J 17 JUNE 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1324 OF 2001

BETWEEN: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

APPLICANT

AND: DAYIN HOU

RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 17 JUNE 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. No formal orders be made. 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 1324 OF 2001

BETWEEN: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

APPLICANT

AND: DAYIN HOU

RESPONDENT

JUDGE: CONTI J

DATE: 17 JUNE 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The legal representatives of the parties have appeared before me for the purpose of making submissions upon the relief to be ordered in the light of the reasons for judgment which I published on 8 May 2002, to the effect that the Migration Review Tribunal's decision be set aside. In the course of making submissions, I was informed by counsel for Mr Hou that he has returned to the Peoples' Republic of China, following upon completion of the previous year's course conducted by the University of New South Wales, but may seek to return to Australia to further his studies. 2 The Minister fairly foreshadowed the view that in all the circumstances of this case, the appropriate costs order should be in effect neutral, that is to say, that each party should bear his own costs of the appeal, and I think that is correct. I do not think that I should accede to Mr Hou's submission that the Minister should pay his costs of the proceedings in the Court. 3 The further question remains as to what should be the appropriate substantive relief to be ordered in relation to the disposal of the appeal. Counsel for the Respondent Mr Hou has submitted that the Court should make a declaration to the effect that Mr Hou's student visa granted on 21 December 1999, and due to expire on 30 June 2002, remains valid and in force, and in so doing has referred me to the Court's powers under s 481(1)(c) and (d) of the Migration Act 1958 (Cth) ("the Act"). Counsel for the Minister has submitted that the consequences of the order which I have already made, namely that the decision of the Tribunal be set aside, is that the matter be remitted to the Tribunal for Mr Hou's application for review to be determined according to law, and has referred me to s 348(1) of the Act, and to certain authorities. 4 I do not think that in the exercise of my discretion, I should accede to either submission, in the light of the circumstances that have occurred since the Tribunal's decision. In the case of student visas, in contrast for instance to protection visas, the process of administrative review which engages the Minister's delegate, the Migration Review Tribunal and the Court will often, as is the case here, exhaust the utility of remission of the original matter to the Tribunal for review. The present reality is that the apparent origin of Mr Hou's predicament, namely incorrect information furnished by Astral College to the Minister, has been overtaken by the events involving Mr Hou's enrolment at the University of New South Wales and the apparently successful conclusion to that enrolment, and his student visa will very shortly expire. It would therefore be essentially of no utility to put the parties to the inconvenience and expense of a Tribunal re-hearing, which would doubtless take place after the expiration of Mr Hou's visa on 30 June 2002. If Mr Hou decides to apply for the renewal of his student visa, I would imagine that the merits of his conduct at the University of New South Wales course which he has already undertaken would sensibly constitute at least the principal focus of the delegate's consideration. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.