Andersson v Minister for Immigration - [2010] FMCA 958

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ANDERSSON v MINISTER FOR IMMIGRATION

[2010] FMCA 958

MIGRATION – Review of a decision of a delegate of the Minister for Immigration – visa was cancelled at immigration clearance at Sydney airport – whether the delegate acted ultra vires – whether the delegate failed to exercise procedural fairness – whether the delegate did not consider a relevant consideration or considered an irrelevant consideration – no jurisdictional error – application in a case dismissed.

Migration Act 1958 (Cth), ss.51A, 116, 117, 118A, 119, 120, 121, 166, 172, 476
Migration Regulations 1994 (Cth), reg.1.03, 2.43, 2.44, 3.02
Federal Magistrate Court Act 1999 (Cth), s.61

Dao & Anor v Minister for Immigration [2008] FMCA 1000
Saeed v Minister for Immigration and Citizenship [2010] HCA 23
Computer Interchange Pty Ltd v Microsoft Corporation [1999] FCA 198; (1999) 88 FCR 438
Dye v Commonwealth Securities Limited [2010] FCAFC 115
Minister for Immigration, Local Government and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Desai v Minister for Immigration & Multicultural Affairs [2002] FCA 320

Applicant:

ANDERS JIMMI JONAS ANDERSSON

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

SYG 2640 of 2010

Judgment of:

Nicholls FM

Hearing date:

6 December 2010

Date of Last Submission:

6 December 2010

Delivered at:

Sydney

Delivered on:

6 December 2010

REPRESENTATION

Appearing for the Applicant:

Ms Stratigos and Mr Chatterjee

Solicitors for the Applicant:

Surry Hills Legal Centre

Appearing for the Respondent:

Mr A Markus

Solicitors for the Respondent:

Australian Government Solicitors

ORDERS

The application in a case made on 6 December 2010 is dismissed.
The substantive application, made on 6 December 2010, is set down for mention on Wednesday 15 December 2010 at 10.15am.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2640 of 2010

ANDERS JIMMI JONAS ANDERSSON

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

By way of substantive application made on 6 December 2010 under s.476 of the Migration Act 1958 (Cth) (“the Act”) the applicant puts forward three grounds to challenge the decision of a delegate of the respondent Minister to cancel his visa.
The applicant also seeks, by way of an application in a case made at the same time, interlocutory and injunctive relief seeking a stay of his removal from Australia.
When this latter matter came on for hearing, Mr Andersson was represented by Ms Stratigos and Mr Chatterjee, solicitors. The Minister was represented by Mr A Markus.
In evidence before the Court were the affidavits of Mr Iain Stewart Brady, solicitor, with annexures, for the applicant (one objection ultimately withdrawn), and the affidavit of Ms Angela Margaret Nanson, solicitor, with annexures, for the Minister (one objection also ultimately not pressed).

Background

The material before the Court reveals that Mr Andersson is a Swedish national who, relevantly, arrived in Australia on 3 March 2010,

re-entered on 30 May 2010 and 31 August 2010, and arrived again on 3 December 2010. On each arrival he was in possession of…

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.

Continue reading Andersson v Minister for Immigration

Details

AGLC: Andersson v Minister for Immigration [2010] FMCA 958
Case: [2010] FMCA 958
Decision Date

CaseChat Overview and Summary

The Federal Magistrates Court of Australia dealt with a substantive application and an interlocutory application in the case of Andersson v Minister for Immigration & Citizenship. The substantive application sought to challenge the decision of a delegate of the Minister to cancel the applicant's visa. The interlocutory application sought a stay of removal from Australia. The applicant, a Swedish national, had arrived in Australia on multiple occasions with a visitor visa. The delegate cancelled his visa, considering that he did not have an intention to visit Australia temporarily for tourism purposes. The substantive application raised three grounds, alleging jurisdictional error, procedural unfairness, and taking into account irrelevant considerations. The court dismissed the interlocutory application, finding no arguable case for the stay of removal. The substantive application was set for further mention. The court found that the delegate's decision was not in error, as the delegate had the power to investigate and consider the applicant's conduct and intentions. The applicant's complaints were seen as attempts to cavil with factual findings that were open to the delegate. The court also rejected the argument of procedural unfairness, finding that the period provided for comments was reasonable given the circumstances. The substantive application was dismissed, and no further opportunity was warranted. The interlocutory application was also dismissed, and no orders for suppression or costs were made at that time.

Orders