Uddin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 218

Uddin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 218

The appeal was dismissed because, although Wilcox and Branson JJ held that the 9 May 2003 s 119 notice did not satisfy s 119, the Court followed Ahmed and held that the Tribunal was not confined by that defect and had rectified the inadequacies by its 29 July 2003 s 359A letter. The Tribunal was entitled to decide the review on the papers after the appellant failed to respond within the specified time and did not proceed on any false assumption that it lacked power to grant a hearing. Bennett J agreed that the appeal should be dismissed, but considered that the s 119 notice sufficiently complied with s 119 in relation to condition 8202.

Jurisdiction
Australia
Judgment Date
18 October 2005
Procedural Posture
Migration Appeal Concerning Cancellation of a Student Visa and Judicial Review of a Migration Review Tribunal Decision / Appeal to the Full Court of the Federal Court of Australia From the Federal Magistrates Court of Australia
Outcome
Appeal dismissed.
Legal Topics
['cancellation of Student Visa' 'validity of Notice Under S 119 of the Migration Act 1958 (cth)' 'powers of the Migration Review Tribunal on Review' 'procedural Fairness' 'decision Without Oral Hearing Under Ss 359 C and 360 of the Migration Act 1958 (cth)']
['migration Law' 'administrative Law'] ['cancellation of Student Visa' 'validity of Notice Under S 119 of the Migration Act 1958 (cth)' 'powers of the Migration Review Tribunal on Review' 'procedural Fairness' 'decision Without Oral Hearing Under Ss 359 C and 360 of the Migration Act 1958 (cth)']

Case Brief

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Procedural Posture

Migration Appeal Concerning Cancellation of a Student Visa and Judicial Review of a Migration Review Tribunal Decision / Appeal to the Full Court of the Federal Court of Australia From the Federal Magistrates Court of Australia

Legal Issues

  1. 1 ['Whether the notice given to the appellant on 9 May 2003 was a valid notice under s 119 of the Migration Act 1958 (Cth).' "Whether the Full Court should depart from Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58 concerning the powers of the Tribunal where the original decision-maker's exercise of power was unauthorised." 'Whether ss 359C and 360 of the Migration Act 1958 (Cth) empowered the Tribunal to decide the review without conducting an oral hearing after the appellant did not respond within time to a s 359A notice.']

Ratio Decidendi

The appeal was dismissed because, although Wilcox and Branson JJ held that the 9 May 2003 s 119 notice did not satisfy s 119, the Court followed Ahmed and held that the Tribunal was not confined by that defect and had rectified the inadequacies by its 29 July 2003 s 359A letter. The Tribunal was entitled to decide the review on the papers after the appellant failed to respond within the specified time and did not proceed on any false assumption that it lacked power to grant a hearing. Bennett J agreed that the appeal should be dismissed, but considered that the s 119 notice sufficiently complied with s 119 in relation to condition 8202.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.' 'The parties provide to the Associate to Wilcox J by 8 November 2005 an agreed minute of the order or orders to be made as to costs and if agreement has not by then been reached, the minutes of orders for which they will respectively contend and brief outlines of submissions in support of...