Kumar v Minister for Immigration & Citizenship - [2010] FMCA 614

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 614

MIGRATION – Review of Migration Review Tribunal decision – cancellation of a student visa – Tribunal inviting the applicant to provide information and comment and also inviting the applicant to a hearing – Tribunal cancelling the hearing when the applicant responded to the invitation to comment and provide information three days after the due date – Tribunal finding that the Migration Act 1958 (Cth) required it to so act – whether the Tribunal misunderstood or misapplied the legislation considered – observations on the proper interpretation of visa condition 8202(3).

Education Services for Overseas Students Act 2000 (Cth), ss.19, 20
Migration Act 1958 (Cth), ss.116, 359, 359A, 359C, 360, 360A, 363
Migration Regulations 1994 (Cth)

Hasran v Minister for Immigration [2010] FCAFC 40
Hossain v Minister for Immigration [2010] FCA 161
M v Minister for Immigration (2006) 155 FCR 333
Mazumber v Minister for Immigration & Anor [2010] FMCA 76
Minister for Immigration v Sun & Anor (2005) 146 FCR 498
Mo v Minister for Immigration & Anor [2009] FMCA 1026
Mo v Minister for Immigration [2010] FCA 162

Applicant:

VIKAS KUMAR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1280 of 2010

Judgment of:

Driver FM

Hearing date:

12 August 2010

Date of last submission:

31 August 2010

Delivered at:

Sydney

Delivered on:

19 November 2010

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms L Buchanan
Australian Government Solicitor

ORDERS

A writ of certiorari shall issue quashing the decision of the Migration Review Tribunal made on 21 May 2010.
A writ of mandamus shall issue requiring the Migration Review Tribunal to redetermine the review application before it according to law.
The first respondent shall pay to the applicant the sum of $374 in respect of the application fee paid by him.
The first respondent shall pay to the Court the amount of $509 payable by the applicant but unpaid.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1280 of 2010

VIKAS KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”) made on 21 May 2010. The Tribunal affirmed a decision of a delegate of the Minister to cancel the applicant’s Vocational Education and Training Sector visa.
The following statement of background facts is derived from the Minister’s written submissions.
On 22 January 2009, the applicant, a citizen of India, was granted a Subclass 572 Vocational Education and Training Sector Student visa.
On 10 September 2009, the applicant's education provider, Meridian International Hotel School (Meridian), certified that the applicant had not achieved satisfactory course attendance:
for s.19 of the Education Services for Overseas Students Act 2000 (Cth) [“the ESOS Act”] and standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to…

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 614
Decision Date

CaseChat Overview and Summary

This case involves an application to review a decision of the Migration Review Tribunal, made on 21 May 2010, affirming a decision of a delegate of the Minister to cancel the applicant's Vocational Education and Training Sector visa. The Federal Magistrate found that the Tribunal erred in cancelling the hearing to which the applicant had been invited. The Federal Magistrate held that the applicant's failure to respond to the Tribunal's invitation to provide information and comment within the prescribed time did not require the Tribunal to cancel the hearing to which the applicant had already been invited. The Federal Magistrate concluded that the cancellation of the hearing was a breach of the statutory process of review and quashed the Tribunal's decision. The Federal Magistrate ordered a writ of certiorari to quash the Tribunal's decision and a writ of mandamus requiring the Tribunal to redetermine the review application according to law. The Minister was ordered to pay the applicant's application fee and the Court was ordered to recover the applicant's unpaid setting down fee.

Orders