Sidhu v Migration Review Tribunal [2004] FCAFC 341

FEDERAL COURT OF AUSTRALIA

Sidhu v Migration Review Tribunal [2004] FCAFC 341 MIGRATION – Migration Review Tribunal – refusal of application for student (temporary) visa – whether applicant a genuine applicant for entry and stay as a student – whether jurisdictional error in Tribunal's decision.

Migration Act 1958 (Cth), ss 31, 65, 347 Migration Regulations 1994 (Cth), regs 2.01, 2.03 Craig v State of South Australia (1995) 184 CLR 163 cited Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 cited Minister for Immigration and Multicultural and Indigenous Affairs v Awan (2003) 131 FCR 1 cited Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 cited

LAKHWINDER SINGH SIDHU v MIGRATION REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Q117 OF 2004

LEE, MERKEL, HELY JJ

22 DECEMBER 2004

PERTH (Heard in Brisbane)

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q117 OF 2004

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN: LAKHWINDER SINGH SIDHU

APPELLANT

AND: MIGRATION REVIEW TRIBUNAL

FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SECOND RESPONDENT

JUDGES: LEE, MERKEL & HELY JJ

DATE OF ORDER: 22 DECEMBER 2004

WHERE MADE: PERTH (Heard in Brisbane)

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The judgment of the learned trial judge dated 16 June 2004 be set aside and in lieu thereof it be ordered that: "1. A writ of prohibition issue directing the second respondent not to act on the decision of the first respondent made 22 December 2003. 2. A writ of certiorari issue directed to the first respondent quashing the decision of the first respondent made 22 December 2003. 3. A writ of mandamus issue directed to the first respondent requiring the first respondent to determine according to law the application for review of the decision of the delegate of the second respondent dated 15 May 2003. 4. The second respondent pay the applicant's costs" 3. The second respondent pay the appellant's costs.