Khant v Minister for Immigration - [2009] FMCA 328

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)

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

Application dismissed.
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

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%…

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: [2009] FMCA 328
Decision Date: 21 April 2009

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

Application dismissed.

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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