Chen v Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection) [2013] FCA 1137

FEDERAL COURT OF AUSTRALIA

Chen v Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection) [2013] FCA 1137 Citation: Chen v Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection) [2013] FCA 1137

Appeal from: Chen v Minister for Immigration & Anor [2012] FMCA 912

Parties: YIQIAN CHEN v MINISTER FOR IMMIGRATION AND CITIZENSHIP (NOW MINISTER FOR IMMIGRATION AND BORDER PROTECTION) and MIGRATION REVIEW TRIBUNAL

File number(s): NSD 1874 of 2012

Judge(s): LOGAN J

Date of judgment: 1 November 2013

Catchwords: MIGRATION – decision to cancel student visa – subclass 571 student visa – 80% course attendance requirement – unsatisfactory course attendance per subcl 8202 of Sch 8 of the Migration Regulations 1994 (Cth) – appellant notified by University with a certificate pursuant to s 20 of the Educational Services for Overseas Students Act 2000 (Cth) – whether Migration Review Tribunal (the Tribunal) in breach of s 359A and s 359AA of the Migration Act 1958 (Cth) – procedure adopted to put potentially adverse information to appellant during the Tribunal hearing – whether non-existence of policy and written advice under Ministerial Direction No 38 constituted "information" that should have been provided to the appellant by the Tribunal pursuant to s 359A of the Migration Act 1958 (Cth) – whether Federal Magistrate disturbed merit findings of the Tribunal by impermissibly making substantive review findings – whether Tribunal's decision illogical or irrational or failed to consider integers of appellant's claim

Legislation: Migration Act 1958 (Cth) ss 116(1)(b), 116(3),353, 359A, 359AA, 359A(3), 486E(2), 486I, 499, Education Services for Overseas Students Act 2000 (Cth) s 19 Migration Regulations 1994 (Cth) Item 8202(3)(b) in Sch 8, reg 2.43 and 2.43(2) Federal Court Rules 2011(Cth)