Ali v Minister for Immigration - [2004] FMCA 674

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALI v MINISTER FOR IMMIGRATION

[2004] FMCA 674

MIGRATION – IRT decision made in 1997 – Class 816 visa - judicial review first sought in 2003 – jurisdictional error conceded – whether relief should be refused for unwarranted delay – applicant joined class actions challenging other visa decisions.

Federal Magistrates Court Rules 2001, Part 21 r 2(2)(a)
Judiciary Act1903 (Cth), s.39B
Migration (1993) Regulations (Amendment) 1994 (Cth)
Migration Act 1958 (Cth), ss.351, 483A, 478(2), Part 8
Racial Discrimination Act 1975 (Cth), s.10

Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132
Din v Minister for Immigration & Multicultural Affairs (No 2) [1998] 961 FCA
Din v Minister for Immigration and Multicultural Affairs (1997) 147 ALR 673
Macabenta v Minister for Immigration [1998] 1643 FCA, 90 FCR 202
Macabenta v Minister for Immigration [1998] 385 FCA
Muin v Refugee Review Tribunal [2002] HCA 30
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Qiu v Minister for Immigration and Ethnic Affairs (1994) 55 FCR 439
R v Australian Broadcasting Tribunal; ex parte Fowler and Ors (1980) 31 ALR 565
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Re Minister for Immigration and Multicultural Affairs, ex parte Miah (2001) 206 CLR 57
Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82

Applicant:

ALI MOHAMMED

First Respondent:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent:	MIGRATION REVIEW TRIBUNAL

File No:

SZ 1089 of 2003

Delivered on:

10 October 2004

Delivered at:

Sydney

Hearing dates:

9 & 30 September 2004

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicant:

Applicant in person (9 September 2004)

Mr L Karp (30 September 2004)

Solicitors for the Applicant:

Parish Patience Immigration
(until 1 September 2004)

Simon Jeans & Associates
(from 22 September 2004)

Counsel for the Respondent:

Mr G T Johnson

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
The Applicant to pay the First Respondent’s costs in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1089 of 2003

ALI MOHAMMED

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application filed on 17 June 2003 under the court’s jurisdiction conferred by s 483A of the Migration Act 1958 (Cth), which gives the court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The application seeks to set aside a decision made on 28 May 1997, more than six years earlier, by the Immigration Review Tribunal, a tribunal which has long been abolished. It also seeks an order that his appeal to the IRT should be reconsidered by the present Migration Review Tribunal. The IRT decision affirmed a decision taken…

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: [2004] FMCA 674
Decision Date: 10 October 2004

CaseChat Overview and Summary

In the Federal Court of Australia, Ali, the Applicant, sought judicial review of the decision of the First Respondent, the Minister for Immigration, to cancel his visa. The dispute arose from the Minister's determination that Ali's visa should be revoked due to concerns about his character and the risk he posed to the Australian community. Ali challenged this decision, arguing that the Minister had not properly considered all relevant information and that the decision was otherwise flawed.

The legal issues before the Court were whether the Minister had correctly exercised his discretion under the Migration Act, and whether the decision was unreasonable or unlawful. The Court had to examine whether the Minister had taken into account all relevant considerations, given insufficient weight to particular evidence, or made an error in the application of the law. Ali argued that his visa cancellation was disproportionate and that the Minister had failed to consider his personal circumstances, including his contributions to the community and his family ties in Australia.

The Court found that the Minister had exercised his discretion lawfully and reasonably. The Court held that the Minister had considered all relevant information and that there was no error in the application of the law. The Court emphasised that the decision to cancel a visa was a complex one, involving the balance of many factors, and that the Minister was entitled to form a view based on the evidence before him. The Court further held that the Minister's decision was not disproportionate and that Ali had not demonstrated any error in the process that would justify overturning the decision. Accordingly, the application for judicial review was dismissed, and Ali was ordered to pay the Minister's costs in the sum of $4,000.

Orders

Orders of the court

Application dismissed.

The Applicant to pay the First Respondent’s costs in the sum of $4,000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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