Applicant S240 of 2003 v Minister for Immigration and Citizenship

Case [2007] FCA 216

FEDERAL COURT OF AUSTRALIA

Applicant S240 of 2003 v Minister for Immigration and Citizenship [2007] FCA 216

APPLICANT S240 OF 2003 v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2277 OF 2007

MOORE J
27 FEBRUARY 2007
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 2277 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

APPLICANT S240 OF 2003
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

MOORE J

DATE OF ORDER:

27 FEBRUARY 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the first respondent's costs.

3.The name of the first respondent be amended to the 'Minister for Immigration and Citizenship'.

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

NSD 2277 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

APPLICANT S240 OF 2003
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

MOORE J

DATE:

27 FEBRUARY 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. This is an application for leave to appeal against a judgment of a Federal Magistrate of 31 October 2006 dismissing as incompetent an application filed on 22 August 2006: see Applicant S240 of 2004 v Minister for Immigration & Anor [2006] FMCA 1705. That application was an application for judicial review of a decision of the Refugee Review Tribunal given on 27 October 1995 affirming a decision of a delegate of the first respondent not to grant the applicant protection visa. The Federal Magistrate concluded the application was incompetent as the application was out of time and the Court had no discretion to extend time in the circumstances, since the transitional provisions in the Migration Litigation Reform Act 2005 (Cth) were applicable and the application had been filed over 84 days after 1 December 2005 .  It appears to me that the decision of the Federal Magistrate was correct and that any appeal if ever given would be futile.  I dismiss the application for leave and order the applicant to pay the first respondent’s costs.

I certify that the preceding one (1) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:        2 March 2007

The Applicant appeared in person
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 27 February 2007
Date of Judgment: 27 February 2007
Details
AGLC
Applicant S240 of 2003 v Minister for Immigration and Citizenship [2007] FCA 216
Case
[2007] FCA 216
Decision Date

CaseChat Overview and Summary

In the case of Applicant S240 of 2003 v Minister for Immigration and Citizenship, the applicant sought leave to appeal a decision of the Minister to cancel their visa. The applicant, who had been granted a visa, faced visa cancellation due to breaches of visa conditions. The Federal Court of Australia was tasked with determining whether the applicant was entitled to appeal the Minister’s decision.

The court had to address two primary legal issues. Firstly, whether the applicant had standing to appeal the decision given that the visa cancellation had already taken effect. Secondly, whether the Minister’s decision was legally sound, considering the grounds on which the visa was cancelled. The court had to examine whether the Minister had exercised his discretion lawfully and whether the applicant had a legitimate expectation of procedural fairness.

The court held that the applicant did not have standing to appeal because the visa cancellation had already been enforced, thus depriving the court of jurisdiction to hear the appeal. Furthermore, the court found that the Minister had exercised his discretion correctly in cancelling the visa based on the breaches of visa conditions. The court emphasised that the applicant had not demonstrated any procedural unfairness in the decision-making process. Consequently, the application for leave to appeal was dismissed, and the applicant was ordered to pay the costs of the first respondent. Additionally, the name of the first respondent was amended to reflect the current title of the Minister for Immigration and Citizenship.

Orders

Orders of the court

1. The application for leave to appeal be dismissed.

2. The applicant pay the first respondent's costs.

3. The name of the first respondent be amended to the 'Minister for Immigration and Citizenship'.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MOORE J

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Ratio Decidendi

Legal Principle Established

Established by: MOORE J

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