FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BRAR v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 435 |
| MIGRATION – Review of Migration Review Tribunal decision – cancellation of a sponsored work visa – applicant allegedly supplying a bogus document in support of his visa application – notice of possible cancellation of the visa incorrectly asserting that the applicant had provided the bogus document to an officer of the Department when in fact it had been provided online – Tribunal inviting comment on information that was in reality a supposition or inference based upon other information – jurisdictional error established. |
| Migration Act 1958 (Cth), ss.5, 97, 101, 103, 107, 109, 359A, 360 Migration Regulations 1994 (Cth) |
| Applicant: | MANJINDER SINGH BRAR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 559 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 8 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 28 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr J R Young |
| Solicitors for the Applicant: | Shamser Thapa & Associates |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Court declares that the notice of incorrect application issued pursuant to s.107 of the Migration Act 1958 (Cth) to the applicant contained a false particular of possible non compliance in that the notice wrongly asserted that the applicant had provided a bogus document to an “officer” as defined in s.5 of the Migration Act.
The Court declares that the notice issued pursuant to s.107 did not enliven the power purportedly exercised under s.109 of the Migration Act 1958 (Cth) to cancel the applicant’s visa.
The first respondent is restrained from relying upon the decision of the delegate made on 12 October 2010 to cancel the applicant’s visa.
A writ of certiorari shall issue, removing the record of the decision of the Migration Review Tribunal made on 7 March 2011 into this Court for the purpose of quashing it.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 559 of 2011
| MANJINDER SINGH BRAR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”). The decision was made on 7 March 2011. The Tribunal affirmed a decision of a delegate of the Minister to cancel the applicant’s (Mr Brar) subclass 886 (Skilled- Sponsored) visa.
The following statement of background facts is derived from the submissions of the parties.
Mr Brar is a citizen of India (court book “CB” 2). He applied for the visa on 24 May 2008: CB 1-58. He was granted the visa on 31 March 2009: CB 59.4.…
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- AGLC
- Brar v MIAC [2011] FMCA 435
- Case
- [2011] FMCA 435
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court needed to address were whether the notice issued under section 107 of the Migration Act contained a false particular and whether this error affected the power exercised under section 109 to cancel the applicant's visa. Additionally, the court needed to determine whether the Migration Review Tribunal's decision to uphold the visa cancellation was valid. The court carefully examined the language and definitions in the Migration Act to assess the accuracy of the notice and its implications on the subsequent decision-making process.
In its reasoning, the court found that the notice of incorrect application did indeed contain a false particular by incorrectly asserting that a bogus document was provided to an "officer." This mischaracterisation meant that the notice did not properly ground the power exercised under section 109 to cancel the visa. The court further determined that the Migration Review Tribunal's decision, which relied on the flawed notice, was not valid. Consequently, the court ordered that the first respondent be restrained from enforcing the delegate's decision to cancel the visa and that the record of the Migration Review Tribunal's decision be quashed. A writ of certiorari was issued to facilitate this outcome.
Orders
Orders of the court
1.
The Court declares that the notice of incorrect application issued pursuant to s.107 of the Migration Act 1958 (Cth) to the applicant contained a false particular of possible non compliance in that the notice wrongly asserted that the applicant had provided a bogus document to an “officer” as defined in s.5 of the Migration Act.
2.
The Court declares that the notice issued pursuant to s.107 did not enliven the power purportedly exercised under s.109 of the Migration Act 1958 (Cth) to cancel the applicant’s visa.
3.
The first respondent is restrained from relying upon the decision of the delegate made on 12 October 2010 to cancel the applicant’s visa.
4.
A writ of certiorari shall issue, removing the record of the decision of the Migration Review Tribunal made on 7 March 2011 into this Court for the purpose of quashing it.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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