Tien, William & Ors v Minister for Immigration & Multicultural Affairs [1998] FCA 1552

Tien, William & Ors v Minister for Immigration & Multicultural Affairs [1998] FCA 1552

The cancellation of the first applicant’s visa was unlawful because the delegate failed to specify the time of the interview in the invitation, as required by s 121(3)(b) of the Migration Act 1958 (Cth), and took into account matters not properly notified or explained to the applicant as required by ss 119 and 120. The delegate also failed to treat the best interests of the child as a primary consideration or to inform the applicant if they were not to be so treated, contrary to the expectation arising from the Convention on the Rights of the Child as recognised in Teoh. As the first applicant’s visa was not lawfully cancelled, the dependent visas of the second and third applicants were...

Parties
First Applicant: William Tien; Second Applicant: Liang Yan Li; Third Applicant: Natalie Tien; Respondent: Minister for Immigration and Multicultural Affairs
Jurisdiction
Australia
Judgment Date
03 December 1998
Procedural Posture
Judicial Review Application / Final Judgment
Outcome
Application allowed; visa cancellation decisions set aside as not effected lawfully
Legal Topics
Visa Cancellation, Procedural Fairness, International Treaties and Conventions, Rights of the Child
Migration Law Administrative Law Visa Cancellation Procedural Fairness International Treaties and Conventions Rights of the Child

Case Brief

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Parties

William Tien

First Applicant

Liang Yan Li

Second Applicant

Natalie Tien

Third Applicant

Minister for Immigration and Multicultural Affairs

Respondent

Procedural Posture

Judicial Review Application / Final Judgment

Legal Issues

  1. 1 Whether the cancellation of the first applicant’s visa was affected by error of law or procedural unfairness under the Migration Act 1958 (Cth)
  2. 2 Whether the procedures laid down in ss 119-121 of the Migration Act 1958 (Cth) were complied with for cancellation of the visa
  3. 3 Whether the reasons for cancellation considered by the delegate were properly communicated and relevant under the statutory scheme

Ratio Decidendi

The cancellation of the first applicant’s visa was unlawful because the delegate failed to specify the time of the interview in the invitation, as required by s 121(3)(b) of the Migration Act 1958 (Cth), and took into account matters not properly notified or explained to the applicant as required by ss 119 and 120. The delegate also failed to treat the best interests of the child as a primary consideration or to inform the applicant if they were not to be so treated, contrary to the expectation arising from the Convention on the Rights of the Child as recognised in Teoh. As the first applicant’s visa was not lawfully cancelled, the dependent visas of the second and third applicants were...

Court Disposition

Application allowed; visa cancellation decisions set aside as not effected lawfully

Orders

  • It be declared that the cancellation on 5 November 1998 of the visa held by the first applicant was not effected lawfully.
  • The decision on 5 November 1998 to cancel the visa of the first applicant be set aside ab initio.