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 |
| 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
Application dismissed.
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
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).
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…
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- Case
- [2009] FMCA 642
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court had to address were whether the Minister's decision was lawful and whether there were any jurisdictional errors in the way the decision was made. Specifically, the court had to determine if the Minister appropriately exercised his discretion in assessing Diallo's character and whether the decision-making process complied with relevant statutory requirements and principles of natural justice.
The court found that the Minister's decision was lawful and that there were no jurisdictional errors. The court emphasised that the Minister had a broad discretion in character assessments and that the decision-making process was procedurally sound. The court also highlighted that the Minister had considered relevant factors and evidence in reaching his decision. Therefore, the court dismissed the application and ordered that the applicant pay the Minister's costs, assessed at $5,500.00.
Orders
Orders of the court
1.
Application dismissed.
2.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,500.00.
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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