Applicant M116/2003 v Minister for Immigration - [2004] FMCA 168

FEDERAL MAGISTRATES COURT OF AUSTRALIA

APPLICANT M116/2003 v MINISTER FOR IMMIGRATION & ANOR

[2004] FMCA 168

MIGRATION – High Court application for constitutional writs, declaratory and injunctive relief remitted to the Federal Court and transferred to the Federal Magistrates Court – whether arguable case – whether time limits apply – whether time should be enlarged.

Migration Act 1958, ss.476, 476(4), 477

Muin v Refugee Review Tribunal (2002) HCA 30 (2002) 190 ALR 601
Applicant M115/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1448 (Unreported decision of Marshall J
8 December 2003).
R v Northumberland Compensation Appeal Tribunal; ex parte Shaw (1952)
1 All Eng LR 122
General Steel Industries Inc v Commissioner For Railways (NSW) (1964) 112 CLR 125

Applicant:

APPLICANT M116/2003

Respondents:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

File No:

MZ 1394 of 2003

Delivered on:

18 March 2004

Delivered at:

Melbourne

Hearing Dates:

24 and 26 February 2004

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Mr M Brereton

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application for order nisi is refused.
The applicant shall pay the respondents' costs fixed in the sum of $2000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1394 of 2003

APPLICANT M116/2003

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

Respondents

REASONS FOR JUDGMENT

Introduction – Generic Issues

This is one of a number of applications which for convenience were heard together by the Court over a period of two days. The applications were considered as a group as they have a number of common features or what I would describe as generic issues which are relevant to each application. The proceedings all relate to visa applications under the Migration Act 1958 (the Migration Act).
In each application the applicants had initially commenced proceedings in the High Court of Australia seeking declarations or writ of prohibition or for an injunction or for orders in the nature of certiorari or mandamus against the respondents. Each case had been remitted by the High Court of Australia to the Federal Court of Australia. Each relates to applications for protection visas refused by the Refugee Review Tribunal (the RRT). Each case joined in representative proceedings in the High Court in an application which became known as Muin v Refugee Review Tribunal (2002) HCA 30 (2002) 190 ALR 601 (Muin).
It is also relevant to note that in each case the applications had been transferred by the Federal Court of Australia to the Federal Magistrates Court. Prior to the transfer, however, orders of a similar kind were made in each application, though with varying dates. In the present application orders were made by Marshall J on 9 October 2003 in the following terms:-
“1.The application for an order nisi and the hearing of return of the order nisi, if granted, be conducted as a single hearing.
2.The applicant(s) file and serve:-
(a)

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 Applicant M116/2003 v Minister for Immigration

Details

AGLC: Applicant M116/2003 v Minister for Immigration [2004] FMCA 168
Case: [2004] FMCA 168
Decision Date: 18 March 2004

CaseChat Overview and Summary

Applicant M116/2003, a person who was found to be a non-citizen without a valid visa, applied to the Federal Court of Australia for judicial review of a decision by the Minister for Immigration. The decision under review concerned the refusal of the Minister to grant the applicant a bridging visa, and the applicant sought an order for the Minister to grant such a visa. The court was required to determine whether the Minister's decision was lawful and whether the applicant was entitled to the relief sought. The central legal issue was whether the Minister had acted within his powers in refusing to grant the applicant a bridging visa.

The court considered the relevant statutory provisions and the circumstances of the case. It was found that the Minister had acted within his powers in refusing to grant the applicant a bridging visa. The applicant had not satisfied the criteria set out in the Migration Act 1958, and the Minister was entitled to refuse the application for a bridging visa. The court also found that the applicant had not demonstrated that the Minister had acted irrationally or unconstitutionally in making the decision. The court was satisfied that the Minister had considered all relevant factors and had acted in accordance with the law.

Accordingly, the application for judicial review was dismissed. The court refused the order sought by the applicant and ordered that the applicant pay the respondents' costs, fixed in the sum of $2000. The decision of the Minister was upheld, and the applicant was not granted a bridging visa.

Orders

Orders of the court

The application for order nisi is refused.

The applicant shall pay the respondents' costs fixed in the sum of $2000.

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.