Dong Tan Thanh v Minister for Immigration and Citizenship [2009] FCA 732

Dong Tan Thanh v Minister for Immigration and Citizenship [2009] FCA 732

The applicant's affidavit assertions about receiving a Sales-related letter, release from detention, and later re-detention were false. The applicant had been granted a later Class BB Subclass 155 visa, any earlier substantive visa had ceased under s 82(2), and the later visa was cancelled under s 501(2). Sales was therefore irrelevant. The cancellation rendered the applicant an unlawful non-citizen liable to detention under s 189 and removal under Division 7 of Part 2 of the Migration Act 1958 (Cth), so the proceeding had no reasonable prospect of success under s 31A.

Jurisdiction
Australia
Judgment Date
03 July 2009
Procedural Posture
Federal Court Proceeding Concerning Visa Cancellation and Immigration Detention/removal / First Respondent's Notice of Motion Filed 29 June 2009 Seeking Dismissal of the Application Under S 31 a of the Federal Court of Australia Act 1976 (cth)
Outcome
Judgment was given for the first respondent against the applicant in relation to the whole proceeding under s 31A(2); the proceeding against the second respondent was dismissed; the applicant was ordered to pay the Respondent Minister's costs.
Legal Topics
['summary Judgment' 'no Reasonable Prospect of Success' 'visa Cancellation on Character Grounds' 'unlawful Non Citizen Detention' 'removal From Australia' 'effect of Grant of Later Substantive Visa']
['immigration Law' 'administrative Law' 'federal Court Procedure'] ['summary Judgment' 'no Reasonable Prospect of Success' 'visa Cancellation on Character Grounds' 'unlawful Non Citizen Detention' 'removal From Australia' 'effect of Grant of Later Substantive Visa']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Federal Court Proceeding Concerning Visa Cancellation and Immigration Detention/removal / First Respondent's Notice of Motion Filed 29 June 2009 Seeking Dismissal of the Application Under S 31 a of the Federal Court of Australia Act 1976 (cth)

Legal Issues

  1. 1 ['Whether the applicant had no reasonable prospect of successfully prosecuting the proceeding within the meaning of s 31A of the Federal Court of Australia Act 1976 (Cth).' "Whether the decision in Sales v Minister for Immigration and Citizenship (2008) 171 FCR 56 affected the validity of the cancellation of the applicant's visa." "Whether cancellation of the applicant's Class BB Subclass 155 visa rendered him an unlawful non-citizen liable to detention and removal under the Migration Act 1958 (Cth)."]

Ratio Decidendi

The applicant's affidavit assertions about receiving a Sales-related letter, release from detention, and later re-detention were false. The applicant had been granted a later Class BB Subclass 155 visa, any earlier substantive visa had ceased under s 82(2), and the later visa was cancelled under s 501(2). Sales was therefore irrelevant. The cancellation rendered the applicant an unlawful non-citizen liable to detention under s 189 and removal under Division 7 of Part 2 of the Migration Act 1958 (Cth), so the proceeding had no reasonable prospect of success under s 31A.

Court Disposition

Judgment was given for the first respondent against the applicant in relation to the whole proceeding under s 31A(2); the proceeding against the second respondent was dismissed; the applicant was ordered to pay the Respondent Minister's costs.

Orders

  • ['The application filed 12 June 2009 be amended by adding the letter "h" to the family name of the applicant "Than".' 'The first respondent\'s Notice of Motion filed 29 June 2009 be amended to show the name of the applicant as "Tan Thanh Dong, also known as Dong Tan Thanh".' 'Judgment be given for the first...