Khant v Minister for Immigration

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

KHANT v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 328
MIGRATION – Review of MRT decision – applicant the holder of a student visa – where visa subject to condition 8202 – where visa cancelled for non-attendance – whether existence of exceptional circumstances – Tribunal’s obligation to make enquiries – where applicant did not respond to request for additional information and did not comment on adverse information – whether residual discretion in the Tribunal to allow applicant to appear at a hearing despite loss of entitlement – whether purported exercise of discretion by Tribunal miscarried – nature of merits review in the Tribunal considered.
Migration Act 1958 (Cth), ss.116, 353, 357A(3), 359A, 360, 363A, 379A, 379C, 420, 499
Family Law Act 1975, s.79(2)
Zubair v Minister for Immigration & Anor (2004) 211 ALR 261
Minister for Immigration & Anor v Ahmed [2005] FCAFC 58
Minister for Immigration & Anor v Le & Anors [2007] FCA 1318
SZHUH v Minister for Immigration & Anor [2008] FCA 1893
SZMCE v Minister for Immigration & Anor [2008] FCA 1803
Seyfarth v Minister for Immigration & Anor [2004] FCA 1713
M v Minister for Immigration & Anor [2006] FCA 1247
Khergamwala v Minister for Immigration & Anor [2007] FMCA 690
Uddin v Minister for Immigration & Anor (2005) 149 FCR 1
In the Marriage of Mallett (1983) 52 ALR 193
Minister for Immigration & Anor v Eshetu (1999) 162 ALR 577
Sun Zhan Qui v Minister for Immigration & Anor [1997] FCA 324
Applicant: OAK SOE MAUNG HEIN HTET KHANT
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: SYG 2711 of 2008
Judgment of: Raphael FM
Hearing date: 1 April 2009
Date of Last Submission: 1 April 2009
Delivered at: Sydney
Delivered on: 21 April 2009

REPRESENTATION

Solicitor for the Applicant: Mr S Miller
Counsel for the First Respondent:

Mr G Kennett

Solicitors for the First
Respondent:

DLA Phillips Fox

ORDERS

  1. Application dismissed.

  2. Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2711 of 2008

OAK SOE MAUNG HEIN HTET KHANT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. Mr Khant is a young man born in Myanmar who arrived in Australia on 3 February 2006 seeking to study on a Class TU-573 visa.  On 10 April 2006 a new TU-573 visa, valid until 30 July 2010 and subject to condition 8202, was issued to him.  Mr Khant began to study at an institution known as the Curtin International College (“Curtin”) which is associated with the Curtin University of Technology in Perth.  On 1 February 2007 Curtin sent Mr Khant a letter advising him that he had been reported to the Department of Immigration & Multicultural Affairs for non-compliance with his visa conditions.  The relevant visa condition was 8202 and his non-compliance was stated to be a failure to attend 80%…

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Details
Case
[2009] FMCA 328
Decision Date

CaseChat Overview and Summary

The applicant, Khant, brought an application against the Minister for Immigration seeking judicial review of the decision to cancel his visa. The case was heard in the Federal Circuit and Family Court of Australia. Khant sought to challenge the decision on the basis that the Minister did not consider relevant information, including his marriage to an Australian citizen and his family ties in Australia, and that the decision was otherwise flawed.

The court was required to determine whether the decision to cancel Khant's visa was legally sound and whether the Minister had considered all relevant information. The court examined the relevant legislation and case law to determine the appropriate standard of review and whether the decision-maker had erred in law. The court also considered whether the decision was unreasonable or whether there was some other ground upon which the decision could be quashed.

The court found that the Minister had considered all relevant information and that the decision was not flawed. The court held that the decision was not unreasonable and that Khant had not demonstrated any error on the part of the Minister. The court dismissed the application and ordered Khant to pay the Minister's costs in the sum of $5,000.00. The court found that the decision was lawful and that there were no grounds upon which the decision could be quashed. The court held that Khant had not demonstrated any error on the part of the Minister and that the decision was not unreasonable.

Orders

Orders of the court

1.

Application dismissed.

2.

Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00.

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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