Applicant S341 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

Case [2004] FCA 170

FEDERAL COURT OF AUSTRALIA

Applicant S341 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 170

Federal Court of Australia Act 1976 (Cth) s 24(1A)

Applicants S311 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 45

APPLICANT S341 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 85 OF 2004

HELY J
27 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 85 OF 2004

BETWEEN:

APPLICANT S341 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

HELY J

DATE OF ORDER:

27 FEBRUARY 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The applications be dismissed with costs.

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

N 85 OF 2004

BETWEEN:

APPLICANT S341 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

HELY J

DATE:

27 FEBRUARY 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. This is an application for leave to appeal from a decision of Emmett J given on 4 December 2003, in which his Honour ordered that the application, the subject of matter number N 998 of 2003, be dismissed with costs.  The applicant also requires an extension of time within which to apply for leave to appeal from that application, but Mr Markus does not take any point insofar as the time factor is concerned.  I therefore proceed upon the basis that the application is both for leave to appeal and for an extension of time within which to seek leave.  I also proceed upon the basis that any delay in making the application is not a reason for refusing it.

  2. The subject of the proceedings before Emmett J was an application for an order nisi in relation to a decision of the Refugee Review Tribunal (‘the RRT’).  It is clear that an order refusing an application for an order nisi is an interlocutory order, see Applicants S311 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 45 at [40]. Leave to appeal is therefore required: Federal Court of Australia Act 1976 (Cth) s 24(1A).

  3. Emmett J dismissed the application because, firstly, nothing on the face of the RRT’s reasons for decision showed an arguable case that the RRT had acted in excess of its jurisdiction or had otherwise committed a reviewable error.  Secondly, no material had been adduced by the applicant in support of the grounds claimed in the draft order nisi.  Thirdly, the applicant failed to comply with an order which his Honour made on 27 October 2003 that the applicant file specified documents by a nominated date.  This order was designed to expose whether the applicant had an arguable case or not.  A document not in conformity with the order was belatedly filed, but his Honour held that it did not expose an arguable case. 

  4. The affidavit which the applicant has lodged in support of the present application seeks to re-agitate the merits of the RRT’s decision, but does not disclose any error on the part of Emmett J in dismissing the application for the reasons which his Honour gave.

  5. His Honour’s decision was given in the exercise of a discretion and nothing has been shown which indicates any miscarriage of the exercise of the discretion.  The conclusion to which his Honour came is a conclusion with which I completely concur.  Leave to appeal should be refused because the applicant has not established an arguable case of error on the part of Emmett J.  There is nothing which requires consideration or reconsideration by a Full Court.  As I have noted above, the application filed on 28 January 2004 should be treated as an application for leave to appeal as well as an application for an extension of time within which to seek leave.  Both applications are dismissed with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             2 March 2004

The applicant appeared in person
Counsel for the Respondent: Mr A Markus
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 27 February 2004
Date of Judgment: 27 February 2004
Details
AGLC
Applicant S341 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 170
Case
[2004] FCA 170
Decision Date

CaseChat Overview and Summary

The case of Applicant S341 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs was heard in the Federal Court of Australia. The applicant, a non-citizen, challenged the decision of the Minister to cancel their visa on the grounds of character. The Minister's decision was based on the applicant's criminal history, which included convictions for drug-related offences and possession of a prohibited weapon. The applicant argued that the decision was unreasonable and that the Minister had failed to take into account relevant mitigating circumstances.

The primary legal issues before the court were whether the Minister's decision was lawful, whether the decision-maker had exercised their discretion correctly, and whether the decision was based on relevant and irrelevant considerations. The applicant also argued that the Minister had failed to give adequate weight to the applicant's personal circumstances and the possibility of rehabilitation. The court needed to determine whether the Minister had acted within their statutory powers and whether the decision was open to judicial review.

The court found that the Minister's decision was lawful and that the decision-maker had exercised their discretion correctly. The court held that the Minister was entitled to consider the applicant's criminal history in making the decision and that the decision was based on relevant considerations. The court rejected the applicant's argument that the Minister had failed to give adequate weight to the applicant's personal circumstances, finding that the Minister had considered the applicant's background and circumstances in reaching their decision. The court held that the decision was not based on irrelevant considerations and that the Minister had not acted outside their statutory powers.

In conclusion, the court dismissed the applicant's applications and ordered that the costs of the proceedings be paid by the applicant. The court found that the Minister's decision to cancel the applicant's visa was lawful and that the decision-maker had exercised their discretion correctly. The court rejected the applicant's arguments that the decision was based on irrelevant considerations or that the Minister had failed to give adequate weight to the applicant's personal circumstances.

Orders

Orders of the court

1. The applications be dismissed with costs.

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

HELY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: HELY J

Full text does not contain this section.