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Alsunaid v MIAC

Alsunaid v MIAC

Case [2011] FMCA 238 12 April 2011

Jurisdiction

Procedural Fairness

Breach of Contract

Unconscionable Conduct

Admissibility of Evidence

Natural Justice & Procedural Fairness

Immigration & Refugee Law

Administrative Law

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALSUNAID v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 238

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether breach of condition 8202(3)(b) of Schedule 8 to the Migration Regulations 1994 (Cth) was effective to trigger cancellation of the applicant’s student visa – whether the Tribunal was obliged to investigate inaccuracies in the records of the applicant’s education provider – whether notice of the applicant’s breach of condition 8202(3)(b) by the applicant’s education provider was given to the Department as soon as practicable as required by section 19(2) of the Education Service for Overseas Students Act 2000 (Cth).

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.116(1)(b), 116(3), 119; 474; pt.8 div.2, s.359AA
Migration Regulations 1994 (Cth), regulation 2.43
Education Service for Overseas Students Act 2000 (Cth), ss.19; 20

Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581
Singh v Minister for Immigration and Citizenship & Anor [2009] FMCA 1261
Mazumder v Minister for Immigration and Citizenship & Anor [2010] FMCA 76
Dai v Minister for Immigration and Citizenship & Anor (2007) 165 FCR 458

Mo v Minister for Immigration and Citizenship & Anor [2009] FMCA 1026
Zubair v MIMIA (2004) 139 FCR 344 at [32]
Twist v Randwick Municipal Council (1976) 136 CLR 106
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91

Applicant:

NAWAF ABDULRAHMAN SUNAID ALSUNAID

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2543 of 2010

Judgment of:

Emmett FM

Hearing date:

24 March 2011

Date of Last Submission:

24 March 2011

Delivered at:

Sydney

Delivered on:

12 April 2011

REPRESENTATION

Counsel for the Applicant:

Mr M Cockburn

Solicitors for the Applicant:

Cambridge Law Group

Counsel for the Respondent:

Mr D Godwin

Solicitors for the Respondent:

Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2543 of 2010

NAWAF ABDULRAHMAN SUNAID ALSUNAID

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 27 October 2010 and handed down on 28 October 2010. The Tribunal affirmed a decision of a delegate of the first respondent to cancel the applicant’s Subclass 573 High Education Sector visa for breach of condition 8202(3)(b) of Schedule 8 to the Migration Regulations 1994 (Cth) (“the Regulations”) to the Migration Act 1958 (Cth) (“the Act”) of the applicant’s visa.
The issues in this case are: whether breach of condition 8202(3)(b) was effected by notification to the Department of Immigration and Citizenship (the “Department”) by the applicant’s education provider; whether the Tribunal was obliged to investigate inaccuracies in the records of the applicant’s education provider; and, whether notice of the applicant’s breach of condition 8202(3)(b) was given to the Department as…

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 Alsunaid v MIAC

Details

AGLC: Alsunaid v MIAC [2011] FMCA 238
Case: [2011] FMCA 238
Decision Date: 12 April 2011

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, the applicant, Nawfal Abdulrahman Sunaid Alsunaid, sought a review of a decision made by the Migration Review Tribunal ("the Tribunal") affirming a decision to cancel his Subclass 573 High Education Sector visa for breach of condition 8202(3)(b) of Schedule 8 to the Migration Regulations 1994 (Cth). The primary issues for the court to decide were whether the breach of condition 8202(3)(b) was effectively triggered by notification to the Department of Immigration and Citizenship by the applicant's education provider, whether the Tribunal was required to investigate inaccuracies in the records of the applicant's education provider, and whether notice of the applicant's breach of condition 8202(3)(b) was given to the Department as soon as practicable. The court found that the applicant's first complaint that condition 8202(3)(b) was not capable of compliance by the applicant because the applicant had no control over whether a certificate was provided by his education provider was not made out, as the Full Court of the Federal Court in Maan had held that the present form of condition 8202(3) had the result that the mere fact of certification by the education provider constituted non-compliance by the applicant with his visa conditions. The second complaint that the Tribunal failed to investigate the applicant's assertion that there were inaccuracies in the records of the education provider was also not made out, as the Tribunal was not under a duty to investigate or conduct an inquiry to discover whether a visa applicant's case might be better put or supported by other evidence. The third complaint that the notice given by the applicant's education provider to the Department was deficient because it was not given as soon as practicable after the applicant's alleged breach of condition 8202(3)(b) was also not made out, as the court found that there had been no relevant delay on the part of the Department in its communication with the applicant and the issuing of its various notices upon receipt of the correct certification from the applicant's education provider. The court concluded that the Tribunal's decision was not affected by jurisdictional error and therefore dismissed the proceedings with costs.

Orders