Manage v Minister for Immigration
[2014] FCCA 1089
•1 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MANAGE v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1089 |
| Catchwords: MIGRATION – Merits review completed by Migration Review Tribunal – whether procedural fairness had been afforded to the applicant – whether the applicant had a ‘lost opportunity’ – jurisdictional error – reasons of Tribunal do not demonstrate a conscious consideration of the Applicant’s hardship argument – remitted to the Tribunal. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 |
| Kim v Minister for Immigration and Citizenship (2008) ALR 51 Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 Minister for Immigration and Multicultural Affairs v Zhang(1999) 84 FCR 258 Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 |
| Applicant: | NALIN PRIYANTHA MARAKKALA MANAGE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG1476 of 2013 |
| Judgment of: | Judge McGuire |
| Hearing date: | 14 May 2014 |
| Date of Last Submission: | 14 May 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 1 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gordon |
| Solicitors for the Applicant: | PLS Lawyers |
| Counsel for the Respondents: | Mr Sharp |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent handed down on 14 August 2013 in matter 1210425.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 18 June 2012.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1476 of 2013
| NALIN PRIYANTHA MARAKKALA MANAGE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
The Applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made 14 August 2013 affirming a decision of the delegate of the Minister (“the delegate”) made 18 June 2012 to cancel his Student (subclass 573) visa.
Affidavits of the Applicant sworn 9 September 2013 and 2 May 2014 were read into evidence. The Applicant was represented by counsel before me. A written Outline of Submissions was filed on 13 May 2014.
The application is opposed. The second respondent did not seek to be heard. The first respondent relied on an affidavit of Stephanie Elizabeth Wende, a solicitor, annexing a transcript of the hearing before the Tribunal. That affidavit was filed 9 May 2014.
The Applicant filed an amended application on 12 May 2014, being two days prior to the hearing before me. He has only recently been assisted by legal representation. As such, his counsel’s Outline of Submissions was filed 13 May 2014 and after the written submissions filed by the first respondent.
The amended application seeks four orders in the alternative. Firstly, the Applicant asks for a writ of certiorari:
quashing the decision of the Migration Review Tribunal and/or alternatively an order setting aside the decision of the Migration Review Tribunal.
Secondly:
a declaration that the decision of the Migration Review Tribunal was invalid and/or irregular on the grounds that the Applicant had been denied natural justice and/or procedural fairness….
Thirdly:
a directive to the Migration Review Tribunal that the Applicant’s dependant student (TU-573) visa be reinstated and/or deemed to be extant and that the Applicant be reinstated to the position he was in/or would have been in had he received the letter dated 25 May 2012…
Fourthly:
a directive to the Migration Review Tribunal that the Applicant’s dependant student visa (TU-573) not be cancelled until the Applicant has had the opportunity to be able to make an application for a substantive visa…
Counsel for the respondent submits that the last two remedies sought above are not available to the applicant and not within the power of this court to grant. I accept that submission. Counsel for the applicant did not argue to the contrary.
Background Facts/Chronology
It is proper that these reasons set out clearly and in detail the relevant chronology given that it forms the basis of and elucidates the applicant’s argument. That chronology and relevant agreed facts are as follows:
i)the applicant is a Sri Lankan citizen;
ii)the applicant first came to Australia in 2005 as the holder of a student (subclass 573) visa and completed a graduate Diploma of Information Technology at Central Queensland University in 2007. He then enrolled in a Masters of Chemical Engineering degree at Monash University but did not complete that degree;
iii)in April 2009 the applicant married Ms Nisansala Dhananjalee Samararatee Muhandiramge (“the wife”);
iv)on 23 June 2011 the applicant notified the department of his residential and postal address as “2 Erica Street, Springvale.”;
v)on 26 October 2011 the applicant’s wife was granted a student (subclass 573) visa and the Applicant was granted a “dependant student visa” by reason of that spousal relationship. It was clear that there was at that time a hiatus in the Applicant’s own tertiary studies;
vi)on 12 April 2012 the wife notified the department of her separation from the Applicant;
vii)on 25 May 2012 a Notice of Intention to Consider Cancellation under section 116 of the Migration Act 1958 was forwarded to the Applicant at “6 Cooper Street, Springvale South”, being a prior address;
viii)on 15 June 2012 the applicant obtained a Confirmation of Enrolment (CoE) in respect of a Master of Information Technology degree at the University of Ballarat having received a letter of offer from that institution in May 2012;
ix)On 18 June 2012 the delegate cancelled the applicant’s dependant student visa pursuant to the advice from the applicant’s wife and the Notice of Intention to Consider Cancellation;
x)on 6 July 2012 the applicant applied for a student visa in his own right relying on the CoE from Ballarat University, apparently oblivious to the cancellation of his previous dependant student visa. That application was rejected as he did not hold a current visa. The applicant was formally advised of the cancellation of his prior visa on 13 July 2012;
xi)on 17 July 2012 the applicant made application to the Tribunal for review of the delegate’s decision to cancel his prior dependant student visa;
xii)the hearing before the Tribunal took place on 19 June 2013 and the Tribunal’s decision was handed down on 14 August 2013, being to affirm the decision of the delegate to cancel the applicant’s subclass 573 Higher Education Sector visa (dependant student visa);
xiii)the application to this court was originally filed on 10 September 2013;
xiv)a response was filed 23 September 2013 on behalf of the first and second respondents;
xv)an amended application setting out the orders sought was filed 12 May 2014;
xvi)the application proceeded to hearing before me on 14 May 2014.
In case there be confusion or ambiguity as to the decision of the delegate the subject of review before the Tribunal and this court, the parties agree that it is the decision of the delegate to cancel the applicant’s subclass 573 Higher Education Sector visa (dependant student visa) on 18 June 2012 which was before the Tribunal. The later rejection of the applicant’s application for a student visa in his own right was not the subject of review before the Tribunal and hence not before this court.
Any such confusion as there may be stems from the applicant’s document filed 16 April 2014 titled “Applicant’s Contentions of Fact and Law” which says at paragraph 1:
(1) This is an application pursuant to section 39B of the Judiciary Act for a judicial review of a decision of the Migration Review Tribunal (the MRT) affirming a decision of a delegate of the Respondent not to grant the Applicant a subclass 573 Higher Education Sector visa.
The sole question for this court’s consideration is whether there was a jurisdictional error in the process of the Tribunal’s findings or determination in affirming that the applicant’s visa be cancelled. The matter before me is not concerned with the merits of the applicant’s claim which were properly ventilated before the Tribunal. To allow such argument would lead to an impermissible merits review[1].
[1] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
The Applicant’s Case
The applicant says that he was denied procedural fairness before the delegate. At the relevant time he held a sub class 573 higher education visa by reason of the primary visa held by his wife. The applicant himself had previously been, but was not at the relevant time, a student. The applicant’s wife notified the department of their separation in April 2012. A Notice of Intention to Cancel the applicant’s dependent student visa was forwarded to him albeit to a non-current address. It is not disputed, therefore, that he did not have an opportunity to put submissions or argument to the delegate prior to his visa being cancelled on 18 June 2012.
Counsel for the applicant summarises the first limb of his argument as this lost opportunity to put argument before the delegate as to why his existing visa not be cancelled.
In his outline of submissions, counsel for the applicant says that the jurisdictional error alleged in the subsequent tribunal review was that:[2]
a)The Tribunal should have reinstated his dependant student visa whilst it considered whether the submissions made by the Applicant justified in setting aside the cancellation of his visa or whether the cancellation should be affirmed. This would have put the Applicant into the position he would have and should have been had he received the notice of intention to consider cancellation. He would then have been able to lodge an application for a student visa as he would have done had he received the notice of intention to consider cancellation. Then even if the Tribunal affirmed the decision of the delegate to cancel the Applicant’s visa it would not have mattered as the Applicant would have by then received procedural fairness and natural justice irrespective of the outcome of his application for a student visa. In not doing so the Tribunal erred.
b)Alternatively, the Tribunal should have reinstated the Applicant’s student visa and remitted the matter back to the delegate directing the delegate to issue and serve afresh a new notice of intention to consider cancellation to the Applicant. This again would have put the Applicant into the position he would have and should have been had he received the notice of intention to consider cancellation. He would then have been able to lodge an application for a student visa as he would have done had he received the notice of intention to consider cancellation. Then even if the delegate proceeded to cancel the Applicant’s visa it would not have mattered as the Applicant would have by then received procedural fairness and natural justice irrespective of the outcome of his application for a student visa. In not doing so the Tribunal erred.
[2] See Applicant’s outline of submissions filed 13 May 2014
Counsel for the applicant developed these submissions in the helpful argument advanced before me and continued to assert the jurisdictional error as being the failure to “reinstate the dependant student visa” and remit it to the delegate so as to allow procedural fairness at that level of the process and thereby allow argument against the cancellation of the visa.
Secondly, the applicant argues that the Tribunal fell into error having established that the Act at section 116(1) enlivens a discretion in the Tribunal, it failed to consider the hardship caused to the applicant given his background and circumstances and specifically in respect of the departmental guidelines relevant to the cancellation of a visa (the department’s PAM3 “general cancellation powers). The hardship alleged is the “lost opportunity” to apply for a student visa in his own right during the currency of his existing visa.
The Respondent’s case
Counsel for the respondent argues that the Tribunal did not fall into jurisdictional error. Whilst conceding that the Notice of Intention to Cancel was not forwarded to the applicant at his advised address and therefore not complying with section 119(2) of the Act and regulation 2.55(3) of the Regulations and denying the applicant the opportunity to make submissions to the delegate, he says that situation was rectified or “cured” by a full review hearing on the merits conducted before the Tribunal. That is, non-compliance with section 119 of the Act does not remove jurisdiction of the Tribunal to conduct a hearing de-novo. Given the issue being the cancellation of the applicant’s existing student visa (as distinct from the subsequent rejection of his fresh application), counsel for the respondent says that any opportunity lost for submissions before the delegate was rectified by the applicant having the opportunity to put written and oral submissions, argument and relevant evidence before the Tribunal which, fully informed, conducted a hearing on the merits.
Counsel for the respondent argues that the transcript of the hearing before the Tribunal and the Tribunal’s written reasons each demonstrate that:
i)the applicant had full opportunity and did ventilate his argument and evidence before the Tribunal; and
ii)the Tribunal understood and properly referenced the relevant considerations in exercising its discretion including the departmental PAM3 guidelines and hence did not fall into error.
Counsel for the respondent says that the Tribunal did not fail to take into account relevant evidence and did not take into account irrelevant evidence adverse to the applicant in reaching its determination on the merits. Indeed, no argument was mounted by the applicant to this effect.
The respondent says that the timeline set out above together with time limits provided in the Notice of Intention to Cancel combine to show that there was no “hardship” accorded the applicant. Put simply the respondent says that the applicant had not received his CoE during the time provided in the Notice of Intention to Cancel and could not in any event have applied for a student visa even if the Notice of Intention to Cancel had been sent to the same address. Alternatively, the respondent argues that the reasons of the Tribunal show a conscious consideration of the applicant’s hardship argument.
In conclusion, counsel for the respondent suggested that the material before this court and the submissions of counsel for the applicant tended to a further attempt for review on the merits and did not point to jurisdictional error in the Tribunal.
Proceedings Before the Delegate
It is conceded that the applicant did not have opportunity to make submissions to the delegate. It is conceded that the applicant did not receive the Notice of Intention to Cancel. It is conceded that there was non-compliance with section 119 of the Act and regulation 2.55(3) of the Regulations.
The applicant concedes that the cancellation of the visa was lawful albeit within the above context.
Hearing before the Tribunal
The Tribunal identified section 116(1) of the Act as the operative section enlivening a discretion to cancel a visa upon being satisfied of the existence of certain grounds including that:
...any circumstances which permitted the grant of the visa no longer exist
The Tribunal contrasted section 116(3) of the Act where prescribed circumstances in regulation 2.43(2) render cancellation mandatory. Such prescribed circumstances not existing, the Tribunal properly proceeded under section 116(1) noting that upon being satisfied that a ground for cancellation exists then it must proceed to exercise its discretion in considering to cancel the visa – effectively providing the applicant with a hearing on the merits.
The Tribunal properly cited the Full Federal Court in Minister for Immigration and Multicultural Affairs v Zhang[3] as authority for the proposition that S.116(1)(a) is concerned with a material change in circumstances.
[3] (1999) 84 FCR 258
At paragraph 28 of its reasons the Tribunal found:
The circumstances in which the ground for cancellation arose are that the Applicant ceased to be the spouse of the primary visa holder; and as this was the only basis which permitted the grant of the visa, S116(1)(a) was enlivened.
The Tribunal had before it the benefit of written submissions dated 4 June 2013 comprising some two full pages and prepared by the applicant’s representative who also attended with him before the Tribunal. Those written submissions repeat in great detail and particularity the two limbs of the applicant’s argument set out above including the relevant chronology.
It is clear that the Tribunal addressed the delegate’s decision to cancel the applicant’s visa and was not confused or concerned with the consequent rejection of the applicant’s later application for a further substantive visa.
Under the heading, “Consideration of Discretion” at paragraphs 25-30 of the Statement of Decision and Reasons, the Tribunal addressed the background facts and chronology in exercising that discretion. The department’s PAM3 “general cancellation powers” are again set out at paragraph 25 after being listed at paragraph 9 of those reasons. The Tribunal had before it the letter of 4 June 2012 from the applicant’s representative at Paragraph 29 of the statement of decision and reasons states:
The Tribunal has considered the representative’s written submission and the evidence the Applicant presented at the hearing. In particular, it has considered whether there are extenuating or compassionate circumstances which outweigh the ground for the cancellation of his visa, namely the ending of his relationship with the primary visa holder.
Paragraph 30 of the Tribunal’s reasons states that “the Tribunal is satisfied that no evidence has been given or submissions made which outweigh the ground for cancellation”.
Proceedings before this Court
I was helpfully provided with the document “Applicant’s outline of submissions” filed 13 May 2014 together with the document “Applicant’s contentions of fact and law” filed 16 April 2014 and the applicant’s affidavits read into evidence. The applicant was represented by counsel, Mr Gordon, who advanced the applicant’s case with clear and well-argued submissions.
The respondent was represented by Mr Sharp who equally assisted the court with submissions supported by appropriate authorities. Mr Sharp’s instructors had helpfully provided a court book containing all relevant correspondence, the applicant’s submissions of 4 June 2012, and the Tribunal’s statement of decision and reasons. I was also provided with the affidavit attaching the full transcript of the proceedings before the Tribunal.
I accept the submissions of counsel for the respondent that the “lost opportunity” to put matters before the delegate was cured or rectified by the hearing on the merits provided by the Tribunal. Non- compliance at the delegate-stage with section 119 of the Act does not deprive the Tribunal of the power to carry out a hearing de-novo[4]. I am satisfied that the applicant had opportunity to, and did, present the factual platform, the relevant chronology, and written materials to the Tribunal. The Tribunal’s Statement of Decision and Reasons makes it clear that it fully and properly referenced those materials and facts. It follows that I am satisfied that the Tribunal properly had jurisdiction and that procedural fairness was accorded the applicant by reason of a hearing on the merits by a fully informed tribunal of fact. The loss of opportunity to be heard or “denial of procedural fairness” before the delegate was therefore cured by the later process. I accept the submission of Counsel for the respondent that the power of review in the Tribunal extends to determinations at first instance not authorised by law[5].
[4] Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248
[5] Kim v Minister for Immigration and Citizenship (2008) ALR 51 at para 21
The Tribunal properly understood that the issues should be considered under section 116(1) of the Act as opposed to section 116(3). The Tribunal correctly identified cancellation of the applicant’s existing visa by reason of a circumstance which permitted the grant of such visa no longer existing namely the demise of the spousal relationship. In respect of this first limb of the applicant’s argument, therefore, I am not satisfied that the Tribunal fell into jurisdictional error.
The second limb of the applicant’s argument is that the Tribunal fell into jurisdictional error in not considering, in its discretion, his argument that “hardship” was caused to him by the loss of opportunity to make application for a visa in his own right during the currency of his existing visa.
The material before the tribunal, and noted in the reasons, makes it clear that the applicant did mount such an argument of “hardship”[6]. The merits of such, of course, rest with the Tribunal. This court is concerned only as to whether the Tribunal’s reasons demonstrate a conscious engagement of that issue and, if not, whether such constitutes jurisdictional error?
[6] See letter 4 June 2013 to Migration Review Tribunal at page 63 of Court book
The relevant paragraphs of the Tribunal’s reasons appear at 25-30 which deserve setting out in full in these reasons:
In considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances but not limited to matters identified in the departments policy guidelines, relevantly:
·The purpose of the visa holder’s travel to and stay in Australia
·If cancellation is being consideration because of a breach of visa condition (and cancellation is not mandatory) - the reason for and extent for the breach
·The degree of hardship that may be caused to the visa holder and any family members
·The circumstances in which the ground for cancellation arose (for example, whether extenuating or compassionate circumstances outweigh the grounds for cancelling the visa)
·The visa holder’s past and present behaviour towards the department
·If cancellation is being considered because of the circumstances set out in r.2.43(1)(1a) – the range of mitigating, compassionate and compelling factors outlined in PAM3: Sch2Visa457
·Whether there are persons in Australia whose visas would, or may, be cancelled under s.140
·Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, such as:
-If there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration
-Whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations – that is, removing a person to a country where the person faces persecution, death, torture, cruel, inhuman or degrading treatment or punishment.
·If cancellation is being considered because a Student visa holder has breached condition 8202 (that is, on the basis of circumstances set out in r.2.43(2)(b) – whether the breach was due to exceptional circumstances beyond the visa holder’s control)
·Any other matter the visa holder raises.
The purpose for the applicant’s stay in Australia when the visa was granted to him in October 2011 was to remain with his wife while she undertook studies in Australia.
There is no evidence and no submissions that the cancellation affects the interest of any children in Australia; or that the cancellation is in breach of Australia’s non-refoulement obligations.
The circumstances in which the ground for cancellation arose are that the applicant ceased to be the spouse of the primary visa holder; and as this was the only basis which permitted the grant of visa, s.116(1)(a) was enlivened.
The Tribunal has considered the representative’s written submissions and the evidence the applicant presented at the hearing. In particular, it has considered whether there are extenuating or compassionate circumstances which outweigh the ground for cancellation of his visa, namely the ending of his relationship with the primary visa holder.
The Tribunal is satisfied that no evidence has been given or submissions made which outweigh the ground for cancellation.
The reasons of the Tribunal disclose an obvious, conscious consideration of:
a)The purpose of the visa holder’s travel and stay in Australia (which was not contentious);
b)That there was no effect on the interests of any children in Australia by reason of cancellation of the visa (which was not raised as an issue); and
c)That the cancellation was not in breach of Australia’s non-refoulement obligations (which was not an issue).
Paragraphs 29 and 30 above are general and conclusive in their content. Those paragraphs do not address the particulars of the applicant’s ‘hardship’ argument.
In my view there must be a nexus between the argument and the reasons to disclose that the Tribunal understood and addressed that argument.
The reasons of the Tribunal do not disclose any evaluation of the applicant’s argument or any weighing and balancing of the evidence.
As the Full Court observed in Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114 at [49]:
The court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present – and what is absent – from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf 206 CLR 323 at [10], [44], [69].
Counsel for the respondent argues that paragraph 20 of the Tribunal’s reasons demonstrate that the Tribunal was aware and had regard to the applicant’s proposed further studies. That paragraph states:
In May 2012 he received a letter of offer for a Master of Information Technology at the University of Ballarat and obtained a CoE for this course on 15 June 2012. He then applied for a student visa on 6 July 2012. He was notified that this application was invalid for reason that his previous dependant Student visa had been cancelled on 18 June 2012.
On consideration, I am not satisfied that the simple statements of fact in paragraph 20 have sufficient nexus with the conclusions in that paragraph 29 to demonstrates conscious engagement by the Tribunal of the issue of actual ‘hardship’ arguably accorded the applicant by reason of what he says is the loss of opportunity to apply for a visa during the currency of his existing visa.
I cannot therefore be satisfied that the Tribunal’s reasons disclosed the necessary conscious process of considering and weighing the evidence in respect of this issue which was clearly a material issue for consideration by the Tribunal. It follows, in my view, that there is jurisdictional error in the Tribunal’s determination and not simply a failure to specifically reference a fact in its reasons. The relevant distinction is that the applicant does not argue that the tribunal failed to take into account relevant evidence. Rather, the error is that the reasons do not disclose that the Tribunal addressed and considered his argument.
Counsel for the respondent mounts an alternative argument being one of ‘futility’. That is, he says there is no hardship accrued to the applicant by the loss of opportunity to make application for a visa in his own right because the timeline demonstrates that he could not have done so in any event given the time limitations imposed by the Notice of Intention to Cancel. That notice is dated 25 May 2012. It provides:
You must provide your response in writing within 5 working days after you are taken to have received this letter. Your written comments should address the above issues and if you believe that your visa should not be cancelled, your response should say:
·Why you think the ground for cancellation does or does not exist; and/or
·Why you think your visa should not be cancelled.
Please provide your written response to one of the addresses given at the end of this letter.
If you do not provide any comment, a decision on whether to cancel your visa will be made using information already held by the Department. If you are unable to respond in the above time frame, you should email [email protected], or, contact (03)92353083 beforehand to seek an extension of time. Please note that the time for responding to this notice may only be extended by five (5) working days.
As this letter was sent by mail from a place in Australia to an address in Australia, you are taken to have received this letter seven (7) working days after the date of the letter. A working day does not include weekends or public holidays in the place to where this letter was posted.
Counsel for the applicant argues simply that his opponent’s mathematics are in error and that the times provided and limited by the Notice of Intention to Cancel would have given the applicant a small window of opportunity to make his application prior to the cancellation of his visa. I accept the submission of the applicant on the following basis:
a)Time starts running from 25 May 2012;
b)The applicant is therefore deemed to have received to have received the notice 7 working days later on 5 June 2012;
c)The 5 working days permitted for a response expired on 12 June 2012;
d)The potential extension of a further 5 working days expired on 19 June 2012 being after the receipt by the applicant of his CoE on 15 June 2012.
I therefore reject the respondent’s argument of it being a futile to remit the matter for consideration on the basis that the applicant had no opportunity to make his application for a visa within the time permitted by the Notice of Intention to Cancel.
In conclusion, therefore, I cannot be satisfied from the reasons of the Tribunal that it addressed and considered the applicant’s argument of ‘hardship’ accorded him by reason of the loss of opportunity to put submissions before the delegate in response to the Notice of Intention to Cancel of his current visa. I am satisfied that this was a material issue before the Tribunal. I am satisfied that the failure constitutes jurisdictional error. The matter will be remitted to the Tribunal.
I will hear Counsel as to costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 1 July 2014.
Corrections
File number on front page amended to read MLG1476 of 2013.
Paragraph 37 amended omitting “did not fall into”.
Paragraph 50 amended to read “I accept the submission of the applicant”.
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 was removed from the front page.
Applicants M1O15/3V Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 1309 was removed from the front page.
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