FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHINTALA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 999 |
| MIGRATION – Review by decision of Migration Review Tribunal – whether invitation to appear before Migration Review Tribunal was sent to correct address of authorised recipient nominated by the applicant – whether Migration Review Tribunal erred in inviting the applicant to a “video/face-to-face hearing” rather than “a hearing” as required by s.360 of the Act – whether Migration Review Tribunal complied with procedural requirements of dispatch of invitation to appear before Migration Review Tribunal – whether evidence of usual practice of Migration Review Tribunal in preparation and dispatching of invitations to appear before Migration Review Tribunal hearing was evidence of compliance with s.379A(4)(b) of the Act – whether in light of evidence of usual practice of dispatch of an invitation to appear before Migration Review Tribunal requires identification of person responsible for posting the invitation to applicant – whether notice of intention to consider cancellation was valid where it stated “there may be grounds” for cancellation, rather than “there appear to be grounds” for cancellation in accordance with s.119(1) of the Act – whether Tribunal was required to consider validity of cancellation of earlier 574 visa – whether Court has jurisdiction to consider to declare and make orders consequential upon such declaration where first decision may have lacked statutory foundation – whether applicant raised validity of earlier cancellation of 574 visa before the Migration Review Tribunal. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.65; 116; 116(1)(b); 116(3); 119(1); 360; 360A; 360A(1); 362B; 366(1); 379A; 379A(4); 379A(4)(b); 379(4)(c)(ii); 379C(4); 379G; 379G(1); 474; 475A Migration Regulations 1994, reg.2.43(2)(b); sch.4 para.4013 |
| Applicant: | ROHIT KUMAR CHINTALA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG1699 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 19 June 2006 |
| Date of last submission: | 19 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 13 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms T.L Wong |
| Solicitors for the Applicant: | Mr N. Dobbie, Parish Patience Immigration |
| Counsel for the Respondent: | Mr G. Kennett |
| Solicitors for the Respondent: | Ms N. Johnson, Sparke Helmore |
ORDERS
That the name of the First Respondent be amended from “Minister for Immigration and Multicultural and Indigenous Affairs” to “Minister for Immigration and Multicultural Affairs.”
The application before this Court is dismissed.
That the applicant pay…
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- Case
- [2006] FMCA 999
- Decision Date
CaseChat Overview and Summary
The Court examined the statutory provisions in question and found that section 360A(1) of the Act requires the Tribunal to invite the applicant to appear before it, while section 366(1) allows for flexibility in the mode of appearance, including by video or other means. However, the Court noted that the Tribunal must provide the applicant an opportunity to be heard on the preferred mode of appearance. In the case before the Court, although the Tribunal did not explicitly choose between video and face-to-face hearings, it also did not mandate a video-only hearing. The invitation, while not ideal, did not impose a video link hearing as strictly as in the Korovata case. Therefore, the Court concluded that the Tribunal's omission did not amount to a breach of the statutory requirements.
Consequently, the Court dismissed the application, holding that the Tribunal's failure to explicitly state the mode of appearance did not constitute a jurisdictional error. The Court also ordered that the name of the First Respondent be amended to reflect the current title of the Minister for Immigration and Multicultural Affairs and that the applicant pay the First Respondent's costs in the sum of $10,000.
Orders
Orders of the court
1.
That the name of the First Respondent be amended from “Minister for Immigration and Multicultural and Indigenous Affairs” to “Minister for Immigration and Multicultural Affairs.”
2.
The application before this Court is dismissed.
3.
That the applicant pay the First Respondent’s costs in an amount of $10000.
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
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Ratio Decidendi
Legal Principle Established
In the circumstances, the Tribunal’s failure to contain the words “Parish Patience Immigration”, rather than “Parish Patience Solicitors”, is not jurisdictional error. The Applicant submitted that s.360 of the Act requires the Tribunal to invite the Applicant to appear before the Tribunal and that it is not for the Tribunal to set the hearing down for a video hearing without consulting the Applicant. The Applicant referred to Korovata v Minister for Immigration and Multicultural Affairs [2001] FCA 1446 (“Korovata”). In Korovata, Emmett J found that an invitation to attend a hearing containing the statement, “This will be a telephone hearing”, did not comply with s.360 and s.360A of the Act. Section 360A(1) of the Act requires the Tribunal to invite an applicant to “appear before the Tribunal”. s.366(1) of the Act provides that a tribunal may allow an appearance by an applicant for the giving of evidence to be made by telephone, or closed circuit television or by any other means of communication and is in the following terms:“Oral evidence by telephone etc. (1) For the purposes of the review of a decision, the Tribunal may allow an appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by: (a) telephone; or (b) closed-circuit television; or (c) any other means of communication.” However, the Court in Korovata stated that the Tribunal cannot impose a hearing by one of those methods upon an applicant without providing the applicant with an opportunity to be heard as to why the applicant may or may not wish to appear by video conference at the time and place identified in the invitation to appear. The First Respondent read the affidavit of Marina Osmo, sworn 15 June 2006, in which she annexed a copy of the standard template of an invitation to appear before a tribunal. That standard template disclosed that such an invitation contained the following words and instructions; “the Tribunal has set down a [***please choose one***] video/face-to-face hearing for:”. Ms Osmo stated that the standard template required the case officer, or the person sending the letter, to choose between the alternative forms of words in the template by deleting that which is inapplicable to the particular case. Plainly that was not done in the Invitation, the object of the proceeding before this Court. Whilst the choice between a video hearing and face-to-face hearing was not made in the Invitation by the relevant case officer, the Invitation did not state that a hearing was to take place only by way of video link. Accordingly, there was not the imposition of a video hearing in terms of Korovata, where the Tribunal stated clearly “This will be a telephone hearing”. In the circumstances, whilst unfortunate that the Tribunal did not make clear the opportunity to the Applicant to have his hearing by way of video link, it did not impose a video link hearing upon the Applicant. For those reasons, the failure by the Tribunal to delete the word “video” from the alternatives provided in the Invitation does not amount to a breach of s.360 and s.360A of the Act.