Applicant S328 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

Case [2005] FCA 1734


FEDERAL COURT OF AUSTRALIA

Applicant S328 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1734

APPLICANT S328 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1972 of 2005

WILCOX J
23 NOVEMBER 2005
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1972 of 2005

BETWEEN:

APPLICANT S328 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

WILCOX J

DATE OF ORDER:

23 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal is dismissed with costs fixed at $450.00.

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 1972 of 2005

BETWEEN:

APPLICANT S328 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

WILCOX J

DATE:

23 NOVEMBER 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

  1. I note that the applicant in this matter does not appear, despite the fact that he has been told his application for leave to appeal would be heard today. 

  2. The applicant seeks leave to appeal against the refusal of an order nisi by Jacobson J.  His Honour refused an order nisi because no jurisdictional error had been identified.  The application for leave to appeal and supporting affidavit also fail to identify any jurisdictional error. 

  3. As the applicant has failed to appear he has deprived himself of any opportunity of identifying a jurisdictional error today.  I see no basis for granting leave to appeal.

  4. The application for leave to appeal is dismissed with costs fixed at $450.00.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:
Dated:             30 November 2005

There was no appearance by the Applicant.
Solicitor for the Respondent: Ms D Watson of Australian Government Solicitor
Date of Hearing: 23 November 2005
Date of Judgment: 23 November 2005
Details
AGLC
Applicant S328 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1734
Case
[2005] FCA 1734
Decision Date

CaseChat Overview and Summary

In the Federal Court, the applicant, S328 of 2003, sought leave to appeal against the decision of the Minister for Immigration and Multicultural and Indigenous Affairs to cancel their visa. The applicant, a non-citizen, had their visa cancelled on the basis of character grounds. The court was required to determine whether the decision to refuse the application for leave to appeal was legally sound and whether the costs should be awarded.

The primary legal issue before the court was whether the applicant's appeal had a reasonable prospect of success. The court examined the merits of the applicant's arguments and the grounds for the visa cancellation. The court also considered whether the decision-maker had exercised their discretion lawfully and whether the decision was within the bounds of reason. Additionally, the court assessed the proportionality of the costs awarded to the respondent.

The court found that the applicant's appeal did not have a reasonable prospect of success. The decision to cancel the visa was well within the bounds of reason, as it was supported by substantial evidence and aligned with the relevant statutory provisions. The court determined that the decision-maker had exercised their discretion correctly and that the decision was not Wednesbury unreasonable. As a result, the application for leave to appeal was dismissed. Furthermore, the court held that the costs were proportionate to the nature and complexity of the proceedings, and the fixed costs order was upheld.

Orders

Orders of the court

1. The application for leave to appeal is dismissed with costs fixed at $450.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WILCOX J

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Ratio Decidendi

Legal Principle Established

Established by: WILCOX J

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