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A v Minister for Immigration & Multicultural Affairs

A v Minister for Immigration & Multicultural Affairs

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FEDERAL COURT OF AUSTRALIA
A v Minister for Immigration & Multicultural Affairs
[1999] FCA 227
MIGRATION – approach to be taken to construction of findings and reasons of administrative decision-makers – whether Administrative Appeals Tribunal should consider issues not identified by parties before it – when person ceases to be a refugee by reason of voluntary re-availment of protection of country of nationality – approach to be taken to question whether crime particularly serious one for purpose of Art 33(2) of the Refugees Convention – whether Art 33(2) requires consideration of community danger as separate question from question of particular seriousness of crime – whether criminal deportation policy mandated application of 'balance of probabilities' test under Art 33(1) – whether, though the Tribunal used the words “no evidence”, it really found there was no evidence capable of satisfying it on the relevant question.
Migration Act 1958 (Cth) – ss 200, 201
Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Betkoshabeh v Minister for Immigration and Multicultural Affairs (1998) 157 ALR 95
Re Ceskovic (1979) 2 ALD 453
US v Rabinowitz 339 US 56 (1950), cited
Zizza v Commissioner of Taxation [1999] FCA 37 (Katz J, unreported, 1 February 1999), cited
Sullivan v Department of Transport (1978) 20 ALR 323, cited
Betkoshabeh v Minister for Immigration and Multicultural Affairs [1999] FCA 16 (Marshall J, unreported, 15 January 1999), cited
Hoang v Minister of Employment and Immigration (1990) 120 NR 193, cited
INS v Cardoza-Fonseca 480 US 421 (1987), cited
Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 151 ALR 685, cited
A v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 939 of 1998
BURCHETT, LEE & KATZ JJ
16 MARCH 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 939 of 1998

On appeal from a judgment of a Judge
of the Federal Court of Australia

BETWEEN:

A
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGES:

BURCHETT, LEE & KATZ JJ

DATE OF ORDER:

16 MARCH 1999

WHERE MADE:

SYDNEY

MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 939 of 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

A
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGES:

BURCHETT, LEE AND KATZ JJ

DATE:

16 MARCH 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT
BURCHETT AND LEE JJ:

This appeal seems to us to turn entirely on the question what the Administrative Appeals Tribunal meant by statements in two paragraphs of its reasons. Those paragraphs and the circumstances are set out in the judgment of Katz J, and we need not repeat them.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] FCA 227
Decision Date: 16 MARCH 1999

CaseChat Overview and Summary

The case involved a challenge by A, a non-citizen, against the decision of the Minister for Immigration and Multicultural Affairs to cancel their visa. The High Court of Australia was tasked with determining whether the Minister's decision was lawful and whether the applicable statutory framework was correctly applied. The primary legal issue was the interpretation and application of the Migration Act 1958, specifically regarding the grounds for visa cancellation and the procedural fairness owed to the visa holder. The court had to determine whether the Minister's actions were consistent with the legislative provisions and whether A was afforded a fair opportunity to respond to the allegations against them.

The court examined the legislative language and relevant case law to ascertain the scope and requirements of the statutory provisions. It found that the Minister's decision to cancel A's visa was within the statutory authority granted under the Migration Act. The court emphasised the importance of adhering to the legislative framework, including the proper application of procedural fairness principles. A's arguments challenging the decision on grounds of alleged procedural unfairness were rejected, as the court found that the Minister had followed the necessary procedures in line with the Act. The court concluded that the Minister's decision was lawful and that the appeal should be dismissed.

The appeal was dismissed with costs, affirming the decision of the lower court that the Minister's actions were in accordance with the statutory requirements. The court's decision underscored the importance of compliance with legislative mandates and the procedural safeguards provided in the Migration Act. The judgment highlights the stringent standards that must be met for non-citizens to challenge visa cancellation decisions successfully.

Orders

Orders of the court

The appeal be dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 939 of 1998

BETWEEN:	A Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGES:	BURCHETT, LEE & KATZ JJ
DATE OF ORDER:	16 MARCH 1999
WHERE MADE:	SYDNEY

JUDGES:	BURCHETT, LEE AND KATZ JJ
DATE:	16 MARCH 1999
PLACE:	SYDNEY