Hossain v Minister for Immigration and Citizenship [2010] FCA 161

Hossain v Minister for Immigration and Citizenship [2010] FCA 161

Because Regulation 3.03A prescribed condition 8202 only for section 19(2) of the ESOS Act and not for section 20(1), the notice issued to Mr Hossain was not effective for section 20 purposes; therefore, section 137J of the Migration Act 1958 (Cth) was not engaged, and automatic cancellation of Mr Hossain’s visa did not occur.

Jurisdiction
Australia
Judgment Date
02 March 2010
Procedural Posture
Appeal / Federal Court of Australia Appeal From the Federal Magistrates Court of Australia
Outcome
Appeal allowed
Legal Topics
['student Visa Conditions' 'automatic Visa Cancellation' 'regulation Making Powers' 'statutory Interpretation']
['migration Law' 'administrative Law'] ['student Visa Conditions' 'automatic Visa Cancellation' 'regulation Making Powers' 'statutory Interpretation']

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Procedural Posture

Appeal / Federal Court of Australia Appeal From the Federal Magistrates Court of Australia

Legal Issues

  1. 1 ['Whether Regulation 3.03A of the Education Services for Overseas Students Regulations 2001 (Cth) is effective to prescribe visa condition 8202 for the purposes of section 20 of the Education Services for Overseas Students Act 2000 (Cth)' 'Whether the notice issued to Mr Hossain under section 20 was effective to engage section 137J of the Migration Act 1958 (Cth), resulting in the automatic cancellation of his visa']

Ratio Decidendi

Because Regulation 3.03A prescribed condition 8202 only for section 19(2) of the ESOS Act and not for section 20(1), the notice issued to Mr Hossain was not effective for section 20 purposes; therefore, section 137J of the Migration Act 1958 (Cth) was not engaged, and automatic cancellation of Mr Hossain’s visa did not occur.

Court Disposition

Appeal allowed

Orders

  • ['The parties are to confer about the terms of draft orders to give effect to these reasons for judgment.' 'If no agreement is reached the first respondent is to file proposed orders within 21 days.']