Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40

Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40

The appellant failed to respond by 3 August 2009 to the Tribunal's s 359A invitation, so ss 359C(2), 360(2), 360(3) and 363A operated to make him not entitled to appear before the Tribunal and to deprive the Tribunal of power to permit an oral hearing. The letter of 5 August 2009, read in context, did not deny any separate opportunity under s 358 to provide written material, and no practical injustice was shown. The Tribunal also had no power under s 359B(4) to extend the response period after it had expired. The Federal Magistrate's decision was therefore not shown to be erroneous.

Jurisdiction
Australia
Judgment Date
05 May 2010
Procedural Posture
Administrative Law; Migration; Appeal From Decision Upholding Cancellation of Student Visa / Appeal From the Federal Magistrates Court of Australia
Outcome
Appeal dismissed with costs.
Legal Topics
['cancellation of Student Visa' 'migration Review Tribunal Procedure' 'invitation to Comment Under S 359 a of the Migration Act 1958 (cth)' 'entitlement to Oral Hearing' 'procedural Fairness' 'extension of Time']
['administrative Law' 'migration Law'] ['cancellation of Student Visa' 'migration Review Tribunal Procedure' 'invitation to Comment Under S 359 a of the Migration Act 1958 (cth)' 'entitlement to Oral Hearing' 'procedural Fairness' 'extension of Time']

Case Brief

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Procedural Posture

Administrative Law; Migration; Appeal From Decision Upholding Cancellation of Student Visa / Appeal From the Federal Magistrates Court of Australia

Legal Issues

  1. 1 ['Whether, on the proper construction of ss 359A, 359C, 360 and 363A of the Migration Act 1958 (Cth), the Tribunal had power to afford the appellant an oral hearing after he failed to respond within time to a s 359A letter.' "Whether the Tribunal's letter of 5 August 2009 denied the appellant the opportunity to put written material before the Tribunal under s 358 of the Migration Act 1958 (Cth)." 'Whether the Tribunal had power under s 359B(4) of the Migration Act 1958 (Cth) to grant an extension of time to respond to a s 359A letter where the request was made after expiry of the stipulated period.']

Ratio Decidendi

The appellant failed to respond by 3 August 2009 to the Tribunal's s 359A invitation, so ss 359C(2), 360(2), 360(3) and 363A operated to make him not entitled to appear before the Tribunal and to deprive the Tribunal of power to permit an oral hearing. The letter of 5 August 2009, read in context, did not deny any separate opportunity under s 358 to provide written material, and no practical injustice was shown. The Tribunal also had no power under s 359B(4) to extend the response period after it had expired. The Federal Magistrate's decision was therefore not shown to be erroneous.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs of the appeal."]