Hasran v Minister for Immigration - [2010] FMCA 31

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HASRAN v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 31

MIGRATION – Review of decision of Migration Review Tribunal – effect of s.363A – whether Tribunal had discretion to allow applicant to appear at hearing where s.369C(1) and (2) applied – Sun and M followed – Tribunal did not have discretion – whether Tribunal’s s.359A letter purported to deny opportunity to provide material under s.358 – Tribunal’s letter read fairly – Tribunal did not purport to deny opportunity under s.358 – whether Tribunal had discretion to allow extension of time to respond to s.359A letter – Tribunal does not have discretion to extend time where request made after expiry of prescribed period – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.116, 358, 359, 359A, 359B, 360, 363A, 379A, 379C, 494B

Uddin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 218; (2005) 149 FCR 1
Minister for Immigration & Multicultural & Indigenous Affairs v Jing Shan Sun [2005] FCAFC 201; (2005) 146 FCR 498
M v Minister for Immigration & Multicultural Affairs [2006] FCA 1247
Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41
SZGME v Minister for Immigration & Citizenship [2008] FCAFC 91
Suh v Minister for Immigration & Citizenship [2009] FCAFC 42
Usman & Anor v Minister for Immigration [2005] FMCA 966

Applicant:

AHMAD FARHAN HASRAN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2213 of 2009

Judgment of:

Nicholls FM

Hearing date:

3 December 2009

Date of Last Submission:

3 December 2009

Delivered at:

Sydney

Delivered on:

22 January 2010

REPRESENTATION

Appearing for the Applicant:

Mr R C Turner

Solicitors for the Applicant:

Turner Coulson Immigration Lawyers

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application made on 11 September 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2213 of 2009

AHMAD FARHAN HASRAN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 11 September 2009 under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), made on 12 August 2009, which affirmed the decision of a delegate of the respondent Minster to cancel the applicant’s Student (Temporary) (Class TU) (Subclass 573 – Higher Education Sector) visa.

Background

With reference to the Court Book (“CB”), the relevant background is as follows.
Mr Hasran (“the applicant”) is a national of Malaysia. On 10 September 2008, he was granted a Student (Temporary) (Class TU) (Subclass 573 – Higher Education Sector) visa (“the visa”). On 1 May 2009, the University of Western Australia (“the education provider”) issued the applicant with a “Non-Compliance Notification (NCN) Letter” (the “Section 20” notice – reproduced at CB 1 to CB 7).
On 27…

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.

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Details

Case: [2010] FMCA 31
Decision Date: 22 January 2010

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Hasran v Minister for Immigration involved an application for judicial review brought by the applicant, Hasran, against the Minister for Immigration. The central issue was the legality of the Minister's decision to cancel the applicant's visa under the Migration Act 1958. Hasran contended that the decision was flawed and should be quashed. The court was tasked with determining whether the Minister's decision was legally sound, and if the applicant was entitled to any relief.

The primary legal issues centred on the scope of judicial review and the application of relevant statutory provisions. Specifically, the court had to consider whether the Minister had acted within the bounds of the law, whether there had been any procedural unfairness, and if the decision was based on relevant considerations. The court also needed to examine whether the decision was rational and if the applicant had a legitimate expectation of remaining in Australia. The interpretation of statutory language and the principles of administrative law were key to resolving these issues.

The court held that the Minister's decision was lawful and correctly made. It found that the decision was within the statutory powers granted to the Minister and was not tainted by procedural unfairness or irrelevant considerations. The court emphasised that the Minister had a broad discretion under the Migration Act and that the decision-making process was rational and based on relevant factors. Consequently, the court dismissed the application for judicial review and ordered that the applicant pay the costs of the proceedings to the Minister.

Orders

Orders of the court

The application made on 11 September 2009 is dismissed.

The applicant pay the first respondent’s costs set in the amount of $5,000.

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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