MIGRATION – Migration Review Tribunal – student visa – condition 8202 – attendance requirement – cancellation – s.359A letter – adequacy of particulars – refusal of extension of time for response to s.359A letter – whether unfair and unreasonable – whether discretion to give a hearing when response to s.359A letter is out of time – s.363A – conflicting authority – per incuriam – position of inferior court.
The decision of the second respondent made in matter 060649393 is unlawful, void and of no force and effect.
ORDERS
There be an order in the nature of certiorari bringing in to court and quashing the decision of the second respondent in matter 060649393 made on 4 October 2006.
There be an order in the nature of prohibition prohibiting the respondents from giving effect to that decision.
There be an order in the nature of mandamus requiring the second respondent to rehear and determine, according to law, the applicant’s application for review of the decision of the delegate of the first respondent that was made on 4 October 2006.
The first respondent pay the applicant’s costs fixed in the sum of $5,000
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE
MLG 1459 of 2006
REHAN GEV KHERGAMWALA
Applicant
And
MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Background
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
AGLC
Khergamwala v MIAC [2007] FMCA 690
Case
[2007] FMCA 690
Decision Date
CaseChat Overview and Summary
In the case of Khergamwala v MIAC, the applicant challenged the decision of the second respondent, which was made in relation to matter 060649393, arguing it was unlawful. The court was tasked with determining the validity of the decision and whether it should be quashed. The applicant also sought orders to prohibit the respondents from giving effect to the decision, and to compel the second respondent to rehear and determine the applicant's application for review of the decision made by the delegate of the first respondent. The applicant further sought costs against the first respondent.
The court needed to decide whether the decision of the second respondent was unlawful and, if so, whether the court should intervene to quash that decision. Additionally, the court had to determine whether it was appropriate to grant orders of prohibition and mandamus, and whether the applicant was entitled to costs against the first respondent.
The court found that the decision of the second respondent was indeed unlawful and, therefore, quashed it. The court held that the decision was made without proper consideration of the relevant facts and law, and therefore lacked procedural fairness. The court also found that it was appropriate to grant orders of prohibition and mandamus to ensure that the second respondent did not give effect to the unlawful decision and to require it to rehear the applicant's application. Finally, the court found that the applicant was entitled to costs against the first respondent for the delay in providing necessary documents, which had contributed to the overall delay in the proceedings.
Orders
Orders of the court
DECLARATION
The decision of the second respondent made in matter 060649393 is unlawful, void and of no force and effect.
ORDERS
1.
There be an order in the nature of certiorari bringing in to court and quashing the decision of the second respondent in matter 060649393 made on 4 October 2006.
2.
There be an order in the nature of prohibition prohibiting the respondents from giving effect to that decision.
3.
There be an order in the nature of mandamus requiring the second respondent to rehear and determine, according to law, the applicant’s application for review of the decision of the delegate of the first respondent that was made on 4 October 2006.
4.
The first respondent pay the applicant’s costs fixed in the sum of $5,000