Wen Bi Dai v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1819

Wen Bi Dai v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1819

Condition 8202(3)(b) was valid because ss 41(1) and 504 of the Migration Act 1958 (Cth) authorised the making of regulations imposing visa conditions, and the requirement for an education provider's certification of satisfactory academic results was not an impermissible delegation of the power to specify visa conditions. Section 505 did not apply to existing visa holders but did not limit the regulation-making powers otherwise conferred. The alleged misleading character of the s 20 notice did not establish jurisdictional error by the Tribunal because the s 20 process was legally separate from cancellation under s 116, and alleged defects in that notice were not material to the Tribunal's...

Jurisdiction
Australia
Judgment Date
22 December 2006
Procedural Posture
Application Under S 39 B of the Judiciary Act 1903 (cth) for Judicial Review of a Migration Review Tribunal Decision Affirming Cancellation of a Student Visa / Federal Court Reasons and Orders After Hearing; Application to File a Third Further Amended Application Refused and Substantive Application Dismissed
Outcome
Application dismissed with costs; leave to file a third further amended application refused.
Legal Topics
['student Visa Cancellation' 'condition 8202' 'validity of Delegated Legislation' 'ultra Vires' 'impermissible Delegation' 'procedural Fairness' 'education Services for Overseas Students Act Notice' 'migration Review Tribunal Merits Review']
['migration Law' 'administrative Law'] ['student Visa Cancellation' 'condition 8202' 'validity of Delegated Legislation' 'ultra Vires' 'impermissible Delegation' 'procedural Fairness' 'education Services for Overseas Students Act Notice' 'migration Review Tribunal Merits Review']

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Procedural Posture

Application Under S 39 B of the Judiciary Act 1903 (cth) for Judicial Review of a Migration Review Tribunal Decision Affirming Cancellation of a Student Visa / Federal Court Reasons and Orders After Hearing; Application to File a Third Further Amended Application Refused and Substantive Application Dismissed

Legal Issues

  1. 1 ['Whether Condition 8202(3)(b) in Sch 8 to the Migration Regulations 1994 (Cth) was ultra vires the Migration Act 1958 (Cth) as an impermissible delegation to an education provider of the power to specify visa conditions.' 'Whether s 505 of the Migration Act 1958 (Cth), which concerns applicants for visas, limited the regulation-making power under ss 41(1) and 504 in relation to conditions imposed on visa holders.' "Whether alleged defects or misleading statements in a notice issued under s 20 of the Education Services for Overseas Students Act 2000 (Cth) amounted to a denial of procedural fairness invalidating the Tribunal's decision under s 116 of the Migration Act 1958 (Cth)." 'Whether leave should be granted after hearing to file a third further amended application seeking certiorari against the Delegate as well as the Tribunal.']

Ratio Decidendi

Condition 8202(3)(b) was valid because ss 41(1) and 504 of the Migration Act 1958 (Cth) authorised the making of regulations imposing visa conditions, and the requirement for an education provider's certification of satisfactory academic results was not an impermissible delegation of the power to specify visa conditions. Section 505 did not apply to existing visa holders but did not limit the regulation-making powers otherwise conferred. The alleged misleading character of the s 20 notice did not establish jurisdictional error by the Tribunal because the s 20 process was legally separate from cancellation under s 116, and alleged defects in that notice were not material to the Tribunal's...

Court Disposition

Application dismissed with costs; leave to file a third further amended application refused.

Orders

  • ['The Migration Review Tribunal be joined as a second respondent.' 'The application to file a third further amended application be refused.' 'The application is dismissed.' "The applicant is to pay the first respondent's costs, save for costs thrown away in relation to the vacation of the hearing of 6 March 2006."]