Kim v Minister for Immigration and Citizenship [2008] FCAFC 73

Kim v Minister for Immigration and Citizenship [2008] FCAFC 73

The Full Court held that the Tribunal had jurisdiction to conduct merits review and affirm the delegate's purported cancellation decision notwithstanding the failure to comply with s 119 and notwithstanding the prior Federal Magistrates Court orders. The delegate's decision was an MRT-reviewable decision even if invalid, and the Tribunal's affirmation left the original cancellation decision in place from its original date. Because the visa had been cancelled before its expiry, subsequent expiry did not prevent affirmation. The appeal was therefore dismissed.

Jurisdiction
Australia
Judgment Date
09 May 2008
Procedural Posture
Migration Appeal From a Single Judge of the Federal Court of Australia Concerning Judicial Review of a Migration Review Tribunal Decision Affirming Cancellation of a Subclass 457 Visa / Full Court Appeal
Outcome
Appeal dismissed.
Legal Topics
['cancellation of Visa' 'notice of Intention to Cancel Visa' 'merits Review by Migration Review Tribunal' 'invalid or Purported Administrative Decision' 'expiry of Visa Before Tribunal Affirmation']
['migration Law' 'administrative Law'] ['cancellation of Visa' 'notice of Intention to Cancel Visa' 'merits Review by Migration Review Tribunal' 'invalid or Purported Administrative Decision' 'expiry of Visa Before Tribunal Affirmation']

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Procedural Posture

Migration Appeal From a Single Judge of the Federal Court of Australia Concerning Judicial Review of a Migration Review Tribunal Decision Affirming Cancellation of a Subclass 457 Visa / Full Court Appeal

Legal Issues

  1. 1 ["Whether the Migration Review Tribunal had jurisdiction to affirm a purported decision by a delegate of the Minister to cancel the appellant's visa where no notice was given as required by s 119 of the Migration Act 1958 (Cth)." "Whether the Migration Review Tribunal had jurisdiction to affirm a purported decision to cancel the appellant's visa at a time when the visa had expired." "Whether orders previously made by Smith FM, following concessions by the Minister, prevented the Tribunal from affirming the delegate's decision."]

Ratio Decidendi

The Full Court held that the Tribunal had jurisdiction to conduct merits review and affirm the delegate's purported cancellation decision notwithstanding the failure to comply with s 119 and notwithstanding the prior Federal Magistrates Court orders. The delegate's decision was an MRT-reviewable decision even if invalid, and the Tribunal's affirmation left the original cancellation decision in place from its original date. Because the visa had been cancelled before its expiry, subsequent expiry did not prevent affirmation. The appeal was therefore dismissed.

Court Disposition

Appeal dismissed.

Orders

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