Chen v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1523

FEDERAL COURT OF AUSTRALIA

Chen v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1523 YEN LIN CHEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND MIGRATION REVIEW TRIBUNAL Q 152 OF 2004 DOWSETT J 3 NOVEMBER 2004 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 152 OF 2004

BETWEEN: YEN LIN CHEN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: DOWSETT J

DATE OF ORDER: 3 NOVEMBER 2004

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the first respondent's costs of the 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 152 OF 2004

BETWEEN: YEN LIN CHEN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: DOWSETT J

DATE: 3 NOVEMBER 2004

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 The applicant entered Australia on 2 October 2000, holding a Subclass 676 (Visitor) (Short Stay) visa. On 13 January 2004 he was granted a Subclass 573 (Higher Education Sector) (Student) visa. His activities between October 2000 and January 2004 do not appear clearly from the evidence. They are largely irrelevant for present purposes. It seems, however, that in that time he undertook a course in English in contemplation of his undertaking a course leading to the degree of Bachelor of Commerce in Griffith University, which course was to commence on 1 March 2004. 2 The higher education sector visa granted on 13 January 2004 was subject to a condition that he not engage in work in Australia. I am told that after the commencement of his course he would probably have been granted a fresh visa which would have entitled him to work for up to 20 hours a week during term time and for longer periods during vacations. Nonetheless, for present purposes his visa was subject, at all relevant times, to the condition that he not engage in work in Australia. 3 On 27 February 2004 he was found at a 7-Eleven store, apparently performing the duties of a shop assistant. It subsequently emerged that he owned a 42 per cent share in the business. Work rosters demonstrated that he had worked on 23 out of the 28 preceding days, for about 130 hours in total. The applicant offered various explanations, including that on the date on which he was found working, he was merely filling in for an employee who was absent for a short time. 4 In any event, the respondent gave notice of intention to consider cancelling his visa pursuant to s 116 of the Migration Act 1958 (Cth) and subsequently cancelled it. The applicant applied to the Migration Review Tribunal for review of that decision. The Tribunal affirmed the decision. The applicant now seeks review pursuant to the Judiciary Act 1903 (Cth). 5 In the course of argument, it was conceded that the Tribunal's determination that there had been a breach, giving rise to the s 116 discretion was not infected by any reviewable error. However the applicant submits that the Tribunal failed to recognize that cancellation was discretionary. The Tribunal clearly recognized this at [34]. More particularly, the applicant submits that the Tribunal: