Khant v Minister for Immigration and Citizenship [2009] FCA 1247

FEDERAL COURT OF AUSTRALIA

Khant v Minister for Immigration and Citizenship [2009] FCA 1247

MIGRATION – student visa – whether appellant had complied with conditions of visa – whether Tribunal should have made decision pursuant to s 359C of the Migration Act 1958 – whether information before Tribunal was sufficient to make decision – whether Tribunal should have sought further information – whether Tribunal failed to make an obvious inquiry about a critical fact, the existence of which is easily ascertained – whether failure to make that inquiry was a jurisdictional error PRACTICE AND PROCEDURE– whether leave should be granted to allow new grounds of appeal to be argued – whether grounds of appeal relating to conduct of Tribunal ought to be allowed where grounds were not argued before Federal Magistrate – whether prejudicial to respondent

Administrative Decisions (Judicial Review) Act 1977 (Cth) The Constitution s 75(v) Education Services for Overseas Students Act 2000 (Cth) s 20 Migration Act 1958 (Cth)ss 116, 137L(1)(b), 352(4), 353, 357A(3), 359(1), 359A(1), 359C, 360(3), 363A, 366, 379C(4), 424(1) Migration Regulations 1994 (Cth)reg 2.43(2)(b) Abebe v The Commonwealth of Australia (1999) 197 CLR 510 cited Chen v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 257 referred to Luu and Another v Renevier (1989) 91 ALR 39 cited Minister for Immigration and Citizenship v Le and Others (2007) 164 FCR 151 considered Minister for Immigration and Citizenship v SZIAI and Another (2009) 259 ALR 429 followed Minister for Immigration and Citizenship v SZKTI and Another (2009) 258 ALR 434 followed Minister for Immigration and Citizenship v SZMOK and Others (2009) 257 ALR 427 referred to Minister for Immigration and Multicultural Affairs v Eschetu (1999) 197 CLR 611 referred to NAJT v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2005)147 FCR 51 considered Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 referred to Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs) and Another; Ex parte APPLICANT S154/2002 (2003) 201 ALR 437 cited Snedden v Republic of Croatia (No 2) [2009] FCAFC 132 referred to SZJBA v Minister for Immigration and Citizenship and Another (2007) 164 FCR 14 referred to SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 referred to VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 referred to Videto and Another v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 cited Water Board v Moustakas (1988) 180 CLR 491 explained OAK SOE KHANT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL