Diallo v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DIALLO v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 642

MIGRATION – Review of MRT decision – applicant’s prospective marriage visa cancelled under s.116 – where applicant not granted a hearing because he failed to respond to Tribunal’s invitation to provide information – where invitation sent via facsimile to migration agent but never received – whether Tribunal considered its residual discretion to take further action to obtain applicant’s views on the information – whether Tribunal exercised its discretion unlawfully.

Migration Act 1958 (Cth), ss.116, 359, 359C, 360(2)(c), 363A, 368, 379A

M v Minister for Immigration [2006] FCA 1247
Khant v Minister for Immigration [2009] FMCA 328
MZXRE v Minister for Immigration [2009] FCAFC 82
Ramnares v Minister for Immigration [2004] FMCA 683
Uddin v Minister for Immigration [2005] FCAFC 218
Sharma v Minister for Immigration [2006] FMCA 20
Nisha v Minister for Immigration [2005] FMCA 441

Applicant: AMMAR DIALLO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3393 of 2008

Judgment of: Raphael FM

Hearing date: 1 July 2009

Date of Last Submission: 1 July 2009

Delivered at: Sydney

Delivered on: 14 July 2009

REPRESENTATION

Counsel for the Applicant: Mr R Nair

Counsel for the 
First Respondents: Mr P Reynolds

Solicitors for the
First Respondents: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $5,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3393 of 2008

AMMAR DIALLO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This application raises the interesting question of the existence, nature and exercise of a residual discretion under s.359C Migration Act 1958 (the “Act”) after a person has been barred by the provisions of ss.360(2)(c), 360(3) and s.363A from appearing at a hearing of the Tribunal; M v Minister for Immigration [2006] FCA 1247; Khant v Minister for Immigration [2009] FMCA 328. Although the Full Bench of the Federal Court have suggested that there remains in the Refugee Review Tribunal a discretion to reopen its procedures and permit the appellant the hearing; MZXRE v Minister for Immigration [2009] FCAFC 82 at [30], there is a distinction between the two Tribunals in that there is no equivalent in respect of the Refugee Review Tribunal to s.363A of the Act which applies only to the Migration Review Tribunal and which reinforces the provisions of s.360(2) and (3).

2. Mr Ammar Diallo is a citizen of the Republic of Guinea. On 24 April 2008 he was granted a Sub-class 300 (Prospective Marriage) visa. On 3 September 2008 Mr Diallo was informed by a delegate of an intention to consider cancellation of that visa on the grounds that the relationship between Mr Diallo and his sponsor, Ms Mariama Jalloh, had ended and the marriage would not take place. The applicant did not respond to that notification. On 26 September 2008 the delegate wrote to the applicant advising…