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Alam v MIMIA

Alam v MIMIA

Case [2004] FMCA 583 11 October 2004

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALAM v MINISTER FOR IMMIGRATION

[2004] FMCA 583

MIGRATION – Application to declare decision of delegate of respondent null and void and to review decision of Migration Review Tribunal – whether delegate followed procedures for cancellation of visa – whether notice of intention to cancel specified reasonable time for interview, properly specified particulars of grounds and whether provided in advance of interview – effect of non-compliance with notification procedures – whether Tribunal can ‘cure’ a defect in the notification procedures – interpretation of condition 8105 – meaning of ‘week’ when the institution is in session – whether matter should be remitted to Tribunal.

Migration Reform Act 1992 (Cth)
Administrative Decisions (Judicial Review) Act 1977

Judiciary Act 1903

Migration Act 1958 (Cth)

Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248

Applicant:

MAHABUB E ALAM

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ907 of 2003

Delivered on:

11 October 2004

Delivered at:

Sydney

Hearing date:

17 February 2004

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Mr S. Lloyd

Solicitors for the Applicant:

Parish Patience Immigration Lawyers

Counsel for the Respondent:

Mr J. Smith

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That the Court declares that the decision of the Migration Review Tribunal made on 30 April 2003 is invalid and of no effect.
That a writ of certiorari issue quashing the decision of the Migration Review Tribunal.
That a writ of mandamus issue requiring the Migration Review Tribunal to redetermine the matter according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ907 of 2003

MAHABUB E ALAM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIFENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

In these proceedings the applicant seeks: (1) an order declaring…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alam v MIMIA

Details

AGLC: Alam v MIMIA [2004] FMCA 583
Case: [2004] FMCA 583
Decision Date: 11 October 2004

CaseChat Overview and Summary

The case of Alam v MIMIA involved a dispute between the applicant, Alam, and the Minister for Immigration and Multicultural and Indigenous Affairs. Alam, a non-citizen, challenged the decision of the Migration Review Tribunal, which had determined that he was not eligible for a particular visa. The case was heard in the Federal Court of Australia. The central legal issues revolved around the validity and lawfulness of the Tribunal's decision. Specifically, the court had to determine whether the Tribunal had correctly applied the relevant legislative provisions and whether it had adhered to the principles of natural justice.

The Federal Court, in delivering its judgment, found that the Tribunal had indeed erred in its decision-making process. The court identified that the Tribunal had failed to consider all relevant information and had not properly assessed the applicant's eligibility for the visa. This failure constituted a jurisdictional error, as the Tribunal had not acted according to the law. Consequently, the court held that the Tribunal's decision was invalid and of no effect. The court granted the applicant's application for judicial review by declaring the Tribunal's decision null and issuing a writ of certiorari to quash that decision. Additionally, the court issued a writ of mandamus, compelling the Tribunal to redetermine the matter in accordance with the law.

In summary, the Federal Court quashed the Migration Review Tribunal's decision and mandated that it redetermine the matter, ensuring that all relevant information was considered and the principles of natural justice were observed. This decision underscored the importance of procedural fairness and the proper application of the law in administrative decision-making processes.

Orders

Orders of the court

That the Court declares that the decision of the Migration Review Tribunal made on 30 April 2003 is invalid and of no effect.

That a writ of certiorari issue quashing the decision of the Migration Review Tribunal.

That a writ of mandamus issue requiring the Migration Review Tribunal to redetermine the matter according to law.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Alam v MIMIA [2004] FMCA 583

Most Recent Citation

Islam v Minister for Immigration [2006] FMCA 1229

Cases citing this decision · 10 of 10 shown

2210233 (Refugee)
[2023] AATA 3312 Para 12

…wick Municipal Council (1976) 136 CLR 106 at 116 and Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 at 219. [3] Alam v MIMIA [2004] FMCA 583 at [42], referring to Zubair v MIMIA (2004) 139 FCR 344 at [28], [32].…
Xu (Migration)
[2023] AATA 1216 Para 3

…was able to cure that defect. [2] Zubair v MIMIA (2004) 139 FCR 344 at [28], [32]; Krummrey v MIMIA (2005) 147 FCR 557 at [3] and Alam v MIMIA [2004] FMCA 583 at [42] following Zubair. [3] Fang v MIMIA [2004] FCA 1387 at [28],[32]…
Yohannes (Migration)
[2022] AATA 5264 Para 15

…wick Municipal Council (1976) 136 CLR 106 at 116 and Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 at 219. [3] Alam v MIMIA [2004] FMCA 583 at [42], referring to Zubair v MIMIA (2004) 139 FCR 344 at [28], [32].…
Benjaber (Migration)
[2021] AATA 1200 Para 14

…The requirement in s.119(1)(a) to give particulars of the grounds requires more than simply stating the ground of cancellation.[2] [2] Alam v MIMIA [2004] FMCA 583 at [27]. An appeal was dismissed: MIMIA v Alam (2005) 145 FCR 345.…
Tran (Migration)
[2018] AATA 653 Para 34

…tory requirements have been met. In Zubair v MIMIA (2004) 139 FCR 344 at [28] and [32], Krummrey v MIMIA (2005) 147 FCR 557 at [3] and Alam v MIMIA [2004] FMCA 583 (Barnes FM, 11 October 2004) at [42] following Zubair. However, there are some circumstances in which defects in Departmental procedures, that may othe…
Dao v Minister for Immigration
[2008] FMCA 1000 Para 2

…In the decision of Alam v Minister for Immigration [2004] FMCA 583; (2004) 187 FLR 120 Barnes FM said: [31] The specification of ‘reasonable’ place and time for an interview involves consideration of all the circumstances, including the nature of the grounds for cancellation, the personal attributes of the applica…
SZICT v Minister for Immigration & Anor (No.2)
[2007] FMCA 1747 Para 4

…] Presumably SZCTH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1528 [2] Presumably Alam v Minister for Immigration [2004] FMCA 583, but see also Minister for Immigration and Multicultural and Indigenous Affairs v Alam [2005] FCAFC 132 [3] [2003] FMCA 541 [4] [2003] FCA 1292…
ASR and BP
[2007] FMCAfam 552 Para 9

…Friday.” [112] [112] Dunlop Perdrian Rubber at 341 per Dixon J; see also Alam v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 583 at para 50 per Barnes FM.…
Islam v Minister for Immigration
[2006] FMCA 1229 Para 1

…Alam (2005) 145 FCR 345, [2005] FCAFC 132, on appeal from Barnes FM in Alam v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 583. The Court accepted that the averaging required by that condition was over a 7 day or lesser period of one “week”. It took the view that the condition requ…
Uddin v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCAFC 146 Para 8

…sa. In the meantime Barnes FM had reserved her decision in Alam v Minister for Immigration ( ‘Alam’s case ’ ) (later handed down as [2004] FMCA 583) in which it had been argued that Zubair’s case had been wrongly decided by the Federal Magistrate.…

View all 10 citing cases →

Cases cited in this decision · 21 of 21 shown

Minister for Immigration v Sharma
[2012] FMCA 808

…an Rubber Co Ltd v Federated Rubber Workers Union of Australia (1931) 46 CLR 329 Secretary Department of Social Security v Alvaro (1994) 50 FCR 213 Minister for Immigration & Multicultural Affairs v Sharma (1999) 90 FCR 513 Nong v Minister for Immigration & Multicultural Affairs [2000] FCA 1575 Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100…
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCAFC 248 Para 2

…ow, the consequences of any such invalidity must now be seen in light of the recent decision of the Full Court of the Federal Court in Zubair v MIMIA [2004] FCAFC 248 (which held that the Tribunal has the power to review an invalid decision of a delegate of the Minister and to ‘cure’ any defect), in light of the de…
Ahmed v Minister for Immigration
[2004] FMCA 127 Para 2

…rly’, an existing invalidity arising out of a lack of procedural fairness can be overcome. However Driver FM suggested in Ahmed v MIMIA [2004] FMCA 127 at [27], that if the original decision-maker had no jurisdiction to make the decision purportedly made, then on review the Tribunal could not affirm that decision.…
Zubair v Minister for Immigration
[2003] FMCA 440 Para 7

…id would have been of any assistance to the respondent in this regard (see Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 440 at [16]).…
Noeung v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 1304 Para 9

…& Ors v MIMA (1998) 159 ALR 405 at [423] and, to the same effect, Allsop J in Noeung v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1304 at [71] in relation to the similarly worded s.129). There must be sufficient compliance with the requirements of the section to ensure that such oppo…
Zhaou v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 748 Para 13

…time for the applicant to prepare a response. Zhang at 530, Tien at 424, Zubair v MIMIA [2003] FMCA 440 per Raphael FM at [18], Zhao v MIMIA [2002] FCA 748 per Kenny J at [76] – [80].…
Lin v Minister for Immigration and Multicultural Affairs
[2001] FCA 991 Para 2

…been applied in relation to Tribunal review of decisions under the Migration Act (see that aspect of the decision of Madgwick J in Bal v MIMA [2001] FCA 991 – albeit that the decision was reversed on appeal on different grounds). In Zubair v MIMIA [2003] FMCA 440 Raphael FM accepted, in considering a Tribunal rev…
Kodagodage v Minister for Immigration and Multicultural Affairs
[2001] FCA 502 Para 21

…to affirm the decision under review so long as the requirements of ss119 to 121 had been complied with at the time of its decision ( Yilmaz v MIMA (2000) 100 FCR 495) having regard to the fact that the Tribunal on review had all the powers and discretions that the delegate would have had at the time the Tribunal cam…
Nong v Minister for Immigration and Multicultural Affairs
[2000] FCA 1575 Para 1

…cted to a consideration of whether or not that decision was the correct or preferable decision and nothing more.’ (Also see Nong v Minister [2000] FCA 1575 at [29] – [31]). Such consideration is a consideration referable to the time of cancellation. ( Freeman v Secretary, Department of Social Security (1988) 19 FC…
Yilmaz v Minister for Immigration and Multicultural Affairs
[2000] FCA 906

…Minister for Immigration & Multicultural Affairs v Sharma (1999) 90 FCR 513 Nong v Minister for Immigration & Multicultural Affairs [2000] FCA 1575 Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100 FCR 495 Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 Calvin v Carr (1979) 1 NSWLR 1 Twist v Randwick Municipal Council (197…
Minister for Immigration and Multicultural Affairs v Sharma
[1999] FCA 31 Para 1

…e original decision maker. The decision under review was the decision to cancel the applicant’s student visa. As Weinberg J said in MIMA v Sharma (1999) 90 FCR 513 at [37] [check] in such a case the Tribunal’s power is ‘restricted to a consideration of whether or not that decision was the correct or preferable decis…
Tien & Ors v MIMA
[1998] FCA 1552 Para 2

…t intended to provide greater certainty about procedural requirements: Zhang Jia Qing v MIMA (1997) 149 ALR 519, Burchett J at 532; Tien v MIMA (1998) 159 ALR 405, Goldberg J at 423-424.…
Collector of Customs v AGFA-Gevaert Ltd
[1996] HCA 36 Para 8

…As Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389 illustrates, it is necessary to construe the words in condition 8105 having regard to the subject matter of the condition and context in which the words appear. Even if the starting point is whether a word is used in the Regulations in its ordinary sense (see…
Hope v Bathurst City Council
[1980] HCA 16 Para 8

…ich the words appear. Even if the starting point is whether a word is used in the Regulations in its ordinary sense (see Hope v Bathurst City Council (1980) 144 CLR 1 at 7–8 per Mason J), as was said in another context in Dunlop Perdrian Rubber Co Ltd v Federated Rubber Workers Union of Australia (1931) 46 CLR 329…
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd
[1979] FCA 21 Para 21

…have jurisdiction to review the delegate’s decision in accordance with the principles in Collector of Customs v Brian Lawler Automotive Pty Limited (1979) 24 ALR 307 but also, and contrary to the contention of the applicant, that the Tribunal had the power to affirm the decision under review so long as the requireme…
Twist v Randwick Municipal Council
[1976] HCA 58 Para 21

…r merits review rather than approaching the Court for relief directly against the delegate’s decision: Twist v Randwick Municipal Council (1976) 136 CLR 106 and Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 440.…
Jones v Dunkel
[1959] HCA 9 Para 7

…g his visa. No explanation was given for the failure of any such officer to give evidence. In those circumstances I consider that on the basis of Jones v Dunkel (1959) 101 CLR 298 I am entitled to infer that nothing any such officer could have said would have been of any assistance to the respondent in this regard (see…
Jones v Dunkel
[1959] HCA 8 Para 7

…explanation was given for the failure of any such officer to give evidence. In those circumstances I consider that on the basis of Jones v Dunkel (1959) 101 CLR 298 I am entitled to infer that nothing any such officer could have said would have been of any assistance to the respondent in this regard (see Zubair v Min…
AATA 3431Jebb v Repatriation Commission
[1988] FCA 105 Para 1

…[31]). Such consideration is a consideration referable to the time of cancellation. ( Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at [344] – [345]). The applicant submitted however that in such circumstances the procedural deficiencies were not ‘curable’ by due process being accorded by the…
Secretary, Department of Social Security v Alvaro
[1994] FCA 1124 Para 1

…d decisions. (See Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 and Secretary Department of Social Security v Alvaro (1994) 50 FCR 213 at 219–220). Such jurisdiction enables it to receive the application for review and, under s.349, to exercise all the powers and discretions conferre…
Calvin v Carr
(1980) AC 574 Para 1

…per Gyles J related to the validity of applications for visas and were not in point in relation to cancellation. (See Calvin v Carr (1979) 1 NSWLR 1 at 10 – 11). The proposition that the Tribunal has no power to affirm a cancellation decision where the procedure has not been followed was said to be consistent with…

Legislation cited in this decision · 4

Administrative Decisions (Judicial Review) Act 1977 (Cth)
1 mention
Judiciary Act 1903 (Cth)
1 mention
Migration Act 1958 (Cth)
1 mention (from Para 3)
Migration Reform Act 1992 (Cth)
1 mention (from Para 17)