Nam v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAM v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 340

MIGRATION – Migration Review Tribunal – whether the Tribunal is prohibited from conducting hearing when applicant failed to respond to invitation to respond to information within time – whether a reasonable apprehension of bias arose in the circumstances of this case.

Migration Act 1958, ss.116, 359A, 359C, 360(1), 360(3), 363A

Giri v Minister for Immigration [2011] FMCA 282
Hasran v Minister for Immigration & Anor (2010) 183 FCR 413; [2010] FCAFC 40
Kumar v Minister for Immigration& Citizenship [2010] FMCA 614
M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; (2006) 91 ALD 629; [2006] FCA 1247
Minister for Immigration and Multicultural Affairs v Sun (2005) 146 FCR 498; [2005] FCAFC 201

Applicant: LE HOANG NAM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 138 of 2011

Judgment of: Riley FM

Hearing date: 9 May 2011

Date of last submission: 9 May 2011

Delivered at: Melbourne

Delivered on: 26 May 2011

REPRESENTATION

Counsel for the Applicant: Roz Germov

Solicitors for the Applicant: Migration Partners Australasia

Counsel for the First Respondent: Sharon Burchell

Solicitors for the First Respondent: DLA Piper Australia

Solicitors for the Second Respondent: DLA Piper Australia

ORDERS

1. The application filed on 7 February 2011 be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $5,865..

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 138 of 2011

LE HOANG NAM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application to review a decision of the Migration Review Tribunal. The Tribunal affirmed a decision of the delegate to cancel the applicant’s Higher Education Sector visa under s.116 of the Migration Act 1958. 

2. In conducting its review, the Tribunal did not give the applicant an opportunity to appear before it to give evidence or present arguments relating to the issues arising in relation to the decision under review. That was apparently because Tribunal considered that, pursuant to s.360(3) of the Act, the applicant was not entitled to a hearing because he had not responded to an invitation under s.359A of the Act within the specified time.

3. The issues before the court are whether:

   a)the Tribunal was obliged to give the applicant a hearing; and

   b)the Tribunal’s refusal to give the applicant a hearing raises a reasonable apprehension of bias.

Background

1. The history of the matter is set out in the particulars to ground 1 of the application filed on 7 February 2011.  Those particulars are as follows:

   (a)The Applicant is a Vietnamese national who held a student visa that was cancelled by the First Respondent’s delegate on the grounds that the Applicant had failed to comply with a mandatory condition of his visa; namely condition 8202 (“the primary decision”).

   (b)On 13 December 2010, the Tribunal forwarded two faxes to the Applicant’s…