Minister for Immigration & Multicultural & Indigenous Affairs v Awan [2003] FCAFC 140

FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural & Indigenous Affairs v Awan [2003] FCAFC 140 MIGRATION – visa – student visa – Migration Review Tribunal relied on prior inconsistent statements of applicant to make negative finding on credit – whether obliged to provide particulars of information, and explanation of its relevance, to applicant – whether requirement to do so imperative duty on Tribunal or inviolable limitation on exercise of its power – whether jurisdictional error – criterion whether applicant a genuine applicant for entry and stay as a student, having regard to various matters – whether Tribunal erred by treating those matters as criteria – whether primary judge erred in exercise of discretion – whether discretion should be exercised against appellant Migration Act 1958 (Cth) ss 359A, 424A, 474 Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) Judiciary Act 1903 (Cth) s 39B Migration Regulations 1994 (Cth) item 560.224(1), Sch 2 Awan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 594, cited Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919 (2001) 110 FCR 27, followed Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 195 ALR 24, applied Qu v Minister for Immigration & Multicultural Affairs [2001] FCA 1299, referred to Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 206 CLR 323, referred to House v The King (1936) 55 CLR 499, referred to Carlos v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 719, considered Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396, considered Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679, cited NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449, not followed Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1, considered Minister for Immigration and Multicultural Affairs v Wang (2003) 196 ALR 385, cited Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, considered Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, considered WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220, cited WAAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 409, cited Annetts v McCann (1990) 170 CLR 596, cited Kanda v Government of the Federation of Malaya [1962] AC 322, cited Kioa v West (1985) 159 CLR 550, cited SBBG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 121, cited VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74, cited Stead v State Government Insurance Commission (1986) 161 CLR 141, cited Bax v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 55, cited MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v IRFAN AHMED AWAN V 339 OF 2002 GRAY ACJ, MARSHALL AND MERKEL JJ 26 JUNE 2003 MELBOURNE