Khant v Minister for Immigration and Citizenship [2009] FCA 1247

Khant v Minister for Immigration and Citizenship [2009] FCA 1247

The Tribunal committed jurisdictional error by failing to conduct a proper review. On the material before it, the Tribunal knew that there were serious gaps and obscurities about what occurred before the delegate, what exceptional circumstances had been claimed, and why medical records had been provided. Those matters were critical to the required satisfaction under reg 2.43(2)(b) as to whether the appellant's non-compliance with condition 8202 was not due to exceptional circumstances beyond his control. Although s 359C permitted the Tribunal to proceed after no response was received to its invitation, the circumstances required an obvious and easily made inquiry of the appellant, the...

Jurisdiction
Australia
Judgment Date
05 November 2009
Procedural Posture
Migration Appeal From the Federal Magistrates Court of Australia Concerning Judicial Review of a Migration Review Tribunal Decision Affirming Cancellation of a Student Visa / Appeal to the Federal Court of Australia From Orders Dismissing Judicial Review
Outcome
Appeal allowed; orders of Raphael FM set aside; Tribunal decision quashed; matter remitted to the Migration Review Tribunal; each party to pay their own costs.
Legal Topics
['student Visa Cancellation' 'visa Condition 8202' "exceptional Circumstances Beyond the Visa Holder's Control" 'migration Review Tribunal Review' 'failure to Make an Obvious Inquiry' 'jurisdictional Error' 'leave to Raise New Grounds on Appeal']
['migration Law' 'administrative Law' 'practice and Procedure'] ['student Visa Cancellation' 'visa Condition 8202' "exceptional Circumstances Beyond the Visa Holder's Control" 'migration Review Tribunal Review' 'failure to Make an Obvious Inquiry' 'jurisdictional Error' 'leave to Raise New Grounds on Appeal']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the Tribunal was entitled under s 359C of the Migration Act 1958 (Cth) to proceed to decision without taking further action to obtain information after the appellant did not respond to its invitation.' 'Whether the Tribunal failed to make an obvious inquiry about a critical fact, the existence of which was easily ascertainable.' 'Whether any such failure constituted jurisdictional error.' 'Whether leave should be granted to permit new grounds of appeal not argued before the Federal Magistrate.']

Ratio Decidendi

The Tribunal committed jurisdictional error by failing to conduct a proper review. On the material before it, the Tribunal knew that there were serious gaps and obscurities about what occurred before the delegate, what exceptional circumstances had been claimed, and why medical records had been provided. Those matters were critical to the required satisfaction under reg 2.43(2)(b) as to whether the appellant's non-compliance with condition 8202 was not due to exceptional circumstances beyond his control. Although s 359C permitted the Tribunal to proceed after no response was received to its invitation, the circumstances required an obvious and easily made inquiry of the appellant, the...

Court Disposition

Appeal allowed; orders of Raphael FM set aside; Tribunal decision quashed; matter remitted to the Migration Review Tribunal; each party to pay their own costs.

Orders

  • ['The appeal be allowed.' 'The orders of Raphael FM of 21 April 2009 be set aside.' 'An order in the nature of certiorari issue quashing the decision of the Migration Review Tribunal handed down on 17 September 2008.' 'The matter be remitted to the Migration Review Tribunal to be determined according to law.' 'Each...