Alkan v Minister for Immigration & Multicultural Affairs [2002] FCA 785

FEDERAL COURT OF AUSTRALIA

Alkan v Minister for Immigration & Multicultural Affairs [2002] FCA 785 IMMIGRATION – review of decision of Migration Review Tribunal – application for General (Residence) (Class AS) visa, subclass 801 (Spouse) – applicant not invited to hearing before decision made – applicant failed to provide information requested under s 359 of the Migration Act 1958 (Cth) within specified time frame – applicant claims not to have received correspondence from Tribunal – consideration of Tribunal's correspondence to applicant – whether it constituted an invitation for the purposes of the Act – whether invitation sent to applicant.

Migration Act 1958 (Cth), ss 359, 360

Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 277, referred to NURI ALKAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V663 of 2001

MADGWICK J 19 JUNE 2002 SYDNEY (HEARD IN MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V663 of 2001

BETWEEN: NURI ALKAN

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE OF ORDER: 19 JUNE 2002

WHERE MADE: SYDNEY (HEARD IN MELBOURNE)

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the costs of the respondent except for costs incurred by the respondent in the preparation of the affidavit of David John Hodgett sworn on 24 October 2001.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V663 of 2001

BETWEEN: NURI ALKAN

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE: 19 JUNE 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR: 1 The applicant seeks judicial review of a decision of the Migration Review Tribunal ("the Tribunal") made on 21 May 2001 affirming a decision of a delegate of the respondent Minister to refuse to grant the applicant a General (Residence) (Class AS) visa, subclass 801 (Spouse) ("the visa"). The applicant was not invited to appear before the Tribunal to give evidence or present argument on the basis that he had failed to provide the Tribunal with any additional information or submissions as requested under s 359 of the Migration Act 1958 (Cth) ("the Act"). The applicant claims that he did not receive any such request from the Tribunal and that the Tribunal erred in failing to invite him to a hearing before making its decision. The applicant seeks orders that the decision of the Tribunal be quashed and his application for the visa be remitted to the Tribunal to be heard and determined according to law.