Hossain v Minister for Immigration & Citizenship (No 2) [2010] FCA 306

Hossain v Minister for Immigration & Citizenship (No 2) [2010] FCA 306

Because the appellants' visas were not automatically cancelled under s 137J of the Migration Act 1958 (Cth), the applications to revoke cancellation and the delegate and Migration Review Tribunal decisions refusing revocation had no legal utility. The proper relief was to allow the appeals, set aside the Federal Magistrates Court orders, declare the ESOS Act notices ineffective and declare that the appellants did not cease to hold their visas by reason of those notices, and quash the Migration Review Tribunal decisions by certiorari. It was not appropriate to order the Tribunal to reconsider the matters.

Jurisdiction
Australia
Judgment Date
26 March 2010
Procedural Posture
Appeal From the Federal Magistrates Court of Australia / Determination of Final Orders Following Judgments Delivered on 2 March 2010
Outcome
Appeals allowed; Federal Magistrates Court orders set aside; declarations and certiorari granted; first respondent ordered to pay costs.
Legal Topics
['student Visas' 'automatic Cancellation of Visas' 'education Services for Overseas Students Act Notices' 'migration Review Tribunal Review' 'certiorari' 'declarations']
['migration Law' 'administrative Law'] ['student Visas' 'automatic Cancellation of Visas' 'education Services for Overseas Students Act Notices' 'migration Review Tribunal Review' 'certiorari' 'declarations']

Case Brief

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Procedural Posture

Appeal From the Federal Magistrates Court of Australia / Determination of Final Orders Following Judgments Delivered on 2 March 2010

Legal Issues

  1. 1 ["What orders should be made to give effect to the conclusion that the appellants' student visas had not been cancelled as a result of notices sent in purported compliance with s 20 of the Education Services for Overseas Students Act 2000 (Cth)." 'Whether the Migration Review Tribunal should be directed to further review delegate decisions refusing to revoke purported visa cancellations.' 'Whether declarations and certiorari were appropriate where there had been no automatic cancellation under s 137J of the Migration Act 1958 (Cth).']

Ratio Decidendi

Because the appellants' visas were not automatically cancelled under s 137J of the Migration Act 1958 (Cth), the applications to revoke cancellation and the delegate and Migration Review Tribunal decisions refusing revocation had no legal utility. The proper relief was to allow the appeals, set aside the Federal Magistrates Court orders, declare the ESOS Act notices ineffective and declare that the appellants did not cease to hold their visas by reason of those notices, and quash the Migration Review Tribunal decisions by certiorari. It was not appropriate to order the Tribunal to reconsider the matters.

Court Disposition

Appeals allowed; Federal Magistrates Court orders set aside; declarations and certiorari granted; first respondent ordered to pay costs.

Orders

  • ['In NSD 1276 of 2009, the appeal is allowed.' "In NSD 1276 of 2009, the appellant's costs of the appeal are to be paid by the first respondent, such costs to be taxed if not agreed." 'In NSD 1276 of 2009, the orders made by the Federal Magistrates Court on 20 October 2009 are set aside.' 'In NSD 1276 of 2009, it is...