Le v Minister for Immigration and Citizenship [2007] FCAFC 20

Le v Minister for Immigration and Citizenship [2007] FCAFC 20

The appellant's appointment of Mr Johnstone as Authorised Recipient under s 494D(1) remained operative because it had not been varied or withdrawn. Section 494D required the Minister to give the s 57 information to the Authorised Recipient rather than to the appellant. The 21 September 2004 letter, although accepted as otherwise sufficient for s 57, was not given to Mr Johnstone and was therefore not taken to have been given to the appellant. In the absence of a finding that the letter actually came to the appellant's attention, there was non-compliance with s 57 amounting to jurisdictional error, and the Minister did not establish that compliance could not have made a difference.

Jurisdiction
Australia
Judgment Date
27 February 2007
Procedural Posture
Migration Appeal From a Decision of the Federal Magistrates Court of Australia / Appeal to the Federal Court of Australia
Outcome
Appeal allowed; orders of the Federal Magistrates Court set aside; delegate's decision quashed; matter remitted for reconsideration according to law; respondent ordered to pay costs.
Legal Topics
['partner (residence) (class Bs) Visa' 'authorised Recipient' 'notification of Adverse Information' 'jurisdictional Error' 'migration Act 1958 (cth) Ss 57, 494 a, 494 B, 494 D']
['migration Law' 'administrative Law'] ['partner (residence) (class Bs) Visa' 'authorised Recipient' 'notification of Adverse Information' 'jurisdictional Error' 'migration Act 1958 (cth) Ss 57, 494 A, 494 B, 494 D']

Case Brief

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Procedural Posture

Migration Appeal From a Decision of the Federal Magistrates Court of Australia / Appeal to the Federal Court of Australia

Legal Issues

  1. 1 ['Whether the Minister complied with s 57 of the Migration Act 1958 (Cth) by sending particulars of adverse information to the appellant at her last known residential address rather than to her Authorised Recipient.' 'Whether s 494D(1) continued to require the Minister to give documents to the Authorised Recipient despite evidence that the Authorised Recipient was no longer contactable or active.' 'Whether relief should be refused on the basis that compliance with s 57 and s 494D would have made no difference.']

Ratio Decidendi

The appellant's appointment of Mr Johnstone as Authorised Recipient under s 494D(1) remained operative because it had not been varied or withdrawn. Section 494D required the Minister to give the s 57 information to the Authorised Recipient rather than to the appellant. The 21 September 2004 letter, although accepted as otherwise sufficient for s 57, was not given to Mr Johnstone and was therefore not taken to have been given to the appellant. In the absence of a finding that the letter actually came to the appellant's attention, there was non-compliance with s 57 amounting to jurisdictional error, and the Minister did not establish that compliance could not have made a difference.

Court Disposition

Appeal allowed; orders of the Federal Magistrates Court set aside; delegate's decision quashed; matter remitted for reconsideration according to law; respondent ordered to pay costs.

Orders

  • ['The name of the respondent be changed to Minister for Immigration and Citizenship.' 'The appeal be allowed, the orders of the Federal Magistrates Court made on 25 August 2006 be set aside and the following orders be made in lieu thereof:' 'The decision of the respondent made on 26 September 2004 be quashed.' 'The...