Xue v Minister for Immigration and Border Protection [2018] FCA 1527

Xue v Minister for Immigration and Border Protection [2018] FCA 1527

The Later Tribunal complied with s 359AA because, read in the context of the whole hearing, it clearly put to the First Appellant the inconsistent information about when his relationship with his wife commenced, explained that the inconsistency affected his credibility and could support affirming the cancellation decision, invited a response and allowed additional time. The First Appellant's migration agent understood the matter being put. Accordingly, the asserted failure to provide clear particulars was not made out and the appeal failed.

Jurisdiction
Australia
Judgment Date
12 October 2018
Procedural Posture
Migration Appeal From the Federal Circuit Court of Australia / Appeal From Dismissal of an Appeal From the Administrative Appeals Tribunal
Outcome
Leave to amend the notice of appeal granted; appeal dismissed with costs.
Legal Topics
['visa Cancellation' 'administrative Appeals Tribunal Review' 'migration Act 1958 (cth) S 359 Aa' 'clear Particulars of Adverse Information' 'procedural Fairness']
['migration' 'administrative Law'] ['visa Cancellation' 'administrative Appeals Tribunal Review' 'migration Act 1958 (cth) S 359 Aa' 'clear Particulars of Adverse Information' 'procedural Fairness']

Case Brief

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Procedural Posture

Migration Appeal From the Federal Circuit Court of Australia / Appeal From Dismissal of an Appeal From the Administrative Appeals Tribunal

Legal Issues

  1. 1 ['Whether the Administrative Appeals Tribunal complied with s 359AA of the Migration Act 1958 (Cth) by orally giving clear particulars of information that it considered would be the reason, or part of the reason, for affirming the visa cancellation decision.' 'Whether the Federal Circuit Court erred in dismissing the appeal from the Administrative Appeals Tribunal.']

Ratio Decidendi

The Later Tribunal complied with s 359AA because, read in the context of the whole hearing, it clearly put to the First Appellant the inconsistent information about when his relationship with his wife commenced, explained that the inconsistency affected his credibility and could support affirming the cancellation decision, invited a response and allowed additional time. The First Appellant's migration agent understood the matter being put. Accordingly, the asserted failure to provide clear particulars was not made out and the appeal failed.

Court Disposition

Leave to amend the notice of appeal granted; appeal dismissed with costs.

Orders

  • ['Leave be granted to the appellants to amend the notice of appeal in the form attached to their written submissions on appeal.' 'The appeal be dismissed.' "The Appellants pay the First Respondent's costs as taxed or agreed."]