Chen v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1496

FEDERAL COURT OF AUSTRALIA

Chen v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1496 LI-SHIEN CHEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Q 140 OF 2002

DRUMMOND J 28 NOVEMBER 2002 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 140 OF 2002

BETWEEN: LI-SHIEN CHEN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: DRUMMOND J

DATE OF ORDER: 28 NOVEMBER 2002

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. Leave to amend the notice of appeal be refused.

2. The proceedings be dismissed.

3. The applicant pay the respondent's costs of and incidental to these proceedings.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 140 OF 2002

BETWEEN: LI-SHIEN CHEN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: DRUMMOND J

DATE: 28 NOVEMBER 2002

PLACE: BRISBANE

REASONS FOR JUDGMENT

1 This morning I refused Mr Chen leave to file an amended originating application, dismissed his "notice of appeal" and ordered that he pay the Minister's costs of the proceedings in this Court. My reasons for making those orders follow. 2 In June 2001, a delegate of the Minister cancelled Mr Chen's business skills visa under s 134 the Migration Act 1958 (Cth). Mr Chen made application under s 136 to the Administrative Appeals Tribunal ("the Tribunal") for a review of that decision. The Tribunal, on 29 July 2002, made a decision affirming the cancellation of the visa. By a "notice of appeal" filed in August last, Mr Chen purported to appeal the Tribunal's decision to this Court under s 44 the Administrative Appeals Tribunal Act 1975 (Cth). 3 It is common ground that the Tribunal's decision was a privative clause decision within s 474. An appeal against the Tribunal's decision to this Court under s 44 the Administrative Appeals Tribunal Act is not available: see s 483 the Migration Act. 4 The "notice of appeal" identified three questions of law raised by the appeal. These questions are reflected in the three grounds of appeal. The first appears to be nothing more than a complaint that a critical finding by the Tribunal was against the evidence: that can involve no more than an error of fact. The second asserted, in effect, that the Tribunal's determination that it was satisfied of the existence of the criterion for cancellation in s 134(1)(a) was infected with Wednesbury unreasonableness. The third asserted a misconstruction by the Tribunal of s 134(1)(b) that affected its decision adverse to Mr Chen. 5 The Minister, in submissions filed and served, while not objecting to the competency of Mr Chen's appeal, identified the Tribunal's decision as a privative clause decision; the Minister submitted that none of the issues raised by the "notice of appeal" provided any basis upon which Mr Chen could obtain judicial review under s 39B the Judiciary Act 1903 (Cth) of that decision. 6 This provoked Mr Chen to present a document entitled "Amended Application Notice of Appeal" which, in terms, claimed relief under s 39B the Judiciary Act, a claim based on the three grounds raised by his original "notice of appeal". At the commencement of the hearing, counsel for Mr Chen sought leave to file a further amended application raising a fourth ground for relief under s 39B. 7 I decided, without objection by the respondent, to defer ruling on Mr Chen's request for leave to file the further amended application until I had heard argument on the merits of his claim to relief under the Judiciary Act. The four grounds relied on in his proposed amended application for such relief, are as follows: