Sukhera v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1427

FEDERAL COURT OF AUSTRALIA

Sukhera v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1427 MIGRATION – judicial review – Migration Review Tribunal – student visa – unlawful cancellation of visa – where student visa was cancelled on incorrect grounds – of no effect. Migration Act 1958 (Cth) ss 47, 116, 119,474F Plaintiff S157 v Commonwealth (2003) 211 CLR 476 Broken Hill Proprietary Co Ltd v Trade Practices Tribunal (1980) 31 ALR 401 MOHAMMAD SUKHERA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 2561 of 2003 ALLSOP J 8 NOVEMBER 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2561 of 2003

BETWEEN: MOHAMMAD SUKHERA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 8 NOVEMBER 2004

WHERE MADE: SYDNEY

THE COURT: 1. Declares that the purported cancellation of the applicant's visa on 15 September 1999 was of no effect and had no effect in law on the then existing visa held by the applicant. 2. Declares that the respondent Minister was not in July 2002 or thereafter precluded by s 47 of the Migration Act 1958 (Cth) from considering and determining the student visa application lodged by the applicant on 30 July 2002. 3. Orders that an order in the nature of mandamus issue requiring the Minister to consider and determine the student visa application made by the applicant on 30 July 2002. 4. Orders that the Minister take such steps as are reasonably practicable to inform herself of the nature and content of the application made by the applicant on 30 July 2002 in order to comply with order 3. 5. Orders that the respondent pay the applicant's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.