Khan v Minister for Immigration - [2007] FMCA 419

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KHAN & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 419

MIGRATION – Visa – Migration Review Tribunal – application for review of MRT decision affirming a decision of a delegate of the Minister not to grant a student visa – notification – Bridging visa – writs issued.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.53, 66, 494B, 494C, 494D
Migration Regulations 1992 (Cth), reg. 2.1.6(3), 2.16(1)(c)

Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377 referred to

First Applicant:

SANAUL HAQUE KHAN

Second Applicant:

SHALEEMA BEGUM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

SYG 2739 of 2006

Judgment of:

Scarlett FM

Hearing date:

12 March 2007

Date of last submission:

12 March 2007

Delivered at:

Sydney

Delivered on:

12 March 2007

REPRESENTATION

Solicitor for the Applicant:

Mr Jones

Counsel for the Respondent:

Mr Smith

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the title of the respondent is changed to Minister for Immigration & Citizenship.
That there be a declaration that the letter dated 6^th February 2006 to the first applicant was not a lawful notice to the second applicant of the respondent's decision to refuse her application for a student visa.
That there be an order in the nature of mandamus requiring the respondent to notify the second respondent in accordance with Migration Act (1958) and the Migration Regulations (1994) of the decision to refuse her application for a student visa.
That there be a declaration that the second applicant continues to hold a bridging visa (Class WA) until the prescribed period of time following the notice of the decision.
That there be an order in the nature of prohibition restraining the respondent minister and his servants or agents from taking the action to detain or remove the second applicant from Australia during the validity of the second applicant's (Class WA) Visa.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2739 of 2006

SANAUL HAQUE KHAN

First Applicant

SHALEEMA BEGUM

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The application before the Court is an application for orders in respect of the refusal by a delegate of the Minister, then referred to as the Minister for Immigration & Multicultural Affairs, to further notify the applicant for decision to refuse to grant them student visas. A useful summary of background is contained in the written submissions prepared by Mr Smith of counsel on behalf of the respondent minister. At paragraph two of those submissions, Mr Smith writes:
That on 26^th August 2005 the applicants lodged an application for a temporary student visa. In response to question 20 in the prescribed form, "address for correspondence", the applicants gave the address, 5/9 MacDonald Street, Lakemba, New South Wales 2195 as an answer. That address was also given as the applicant wife's address in response to question 43.

On 6^th February…

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: [2007] FMCA 419
Decision Date: 12 March 2007

CaseChat Overview and Summary

Khan and Anor v Minister for Immigration & Citizenship involved a dispute regarding the proper notification of a student visa refusal. The matter was heard in the Federal Court of Australia. The applicants sought various declarations and orders concerning the handling of their visa applications by the respondent, the Minister for Immigration & Citizenship.

The central legal issues were whether the respondent lawfully notified the second applicant of the refusal of her student visa and whether the respondent complied with the Migration Act 1958 and Migration Regulations 1994 in notifying the applicants. Specifically, the court had to determine if the letter dated 6th February 2006 was sufficient to notify the second applicant of the refusal and if the notice was provided within the prescribed timeframe.

The court found that the letter sent to the first applicant did not constitute a lawful notice to the second applicant of the refusal of her student visa application. It held that the notice was not compliant with the statutory requirements, as it was addressed to the first applicant only and did not specifically notify the second applicant of the decision. The court issued a declaration to this effect and ordered the respondent to notify the second applicant properly. Additionally, the court held that the second applicant's bridging visa remained valid until proper notice was given and issued an order prohibiting the respondent from detaining or removing the second applicant until she was properly notified of the decision.

Orders

Orders of the court

That the title of the respondent is changed to Minister for Immigration & Citizenship.

That there be a declaration that the letter dated 6th February 2006 to the first applicant was not a lawful notice to the second applicant of the respondent's decision to refuse her application for a student visa.

That there be an order in the nature of mandamus requiring the respondent to notify the second respondent in accordance with Migration Act (1958) and the Migration Regulations (1994) of the decision to refuse her application for a student visa.

That there be a declaration that the second applicant continues to hold a bridging visa (Class WA) until the prescribed period of time following the notice of the decision.

That there be an order in the nature of prohibition restraining the respondent minister and his servants or agents from taking the action to detain or remove the second applicant from Australia during the validity of the second applicant's (Class WA) Visa.

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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