Applicant S594 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

FEDERAL COURT OF AUSTRALIA
Applicant S594 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1501
APPLICANT S594 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1381 of 2004
WHITLAM J
22 OCTOBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1381 OF 2004

BETWEEN:

APPLICANT S594 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

WHITLAM J

DATE OF ORDER:

22 OCTOBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The notice of motion be dismissed with costs.
2.Leave to appeal from the judgment of Branson J of 23 August 2004 be refused.

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 1381 OF 2004

BETWEEN:

APPLICANT S594 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

WHITLAM J

DATE:

22 OCTOBER 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The applicant’s notice of motion filed on 24 September 2004 has been listed for hearing today. The motion seeks leave to appeal from an interlocutory judgment of Branson J given on 23 August 2004 refusing an application for an order nisi for constitutional writs: Applicant S594 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1110.
The notice of motion should not have been accepted for filing in the Registry as it was filed more than seven days after the delivery of judgment by her Honour: O 52 r 10(2) of the Rules. A formal application for further time in which to file a notice of motion has not been made but I have heard the applicant on the question of whether leave should be granted to appeal from the judgment. The principles governing the grant or refusal of leave are well known: see Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. No basis has been suggested by the applicant upon which it would be appropriate to grant leave to appeal from the judgment of Branson J.
Accordingly, I order that the notice of motion be dismissed with costs and that leave to appeal from the judgment of Branson J be refused.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.
Associate:
Dated: 18 November 2004

Counsel for the applicant: The applicant appeared in person

Solicitor for the respondent: Mr M J Allatt from the Australian Government Solicitor

Date of hearing: 22 October 2004

Date of judgment: 22 October 2004

CaseChat Overview and Summary

Applicant S594 of 2003, a non-citizen, sought judicial review of a decision by the Minister for Immigration and Multicultural and Indigenous Affairs to cancel a visa due to character grounds. The High Court of Australia was asked to review a decision from the Federal Court of Australia. The primary legal issue before the court was whether the Minister's decision was legally valid and properly exercised under the Migration Act 1958 (Cth). Specifically, the court examined whether the Minister had the authority to consider adverse information about the applicant's character that was not disclosed during the visa application process. The court also assessed whether the Minister's decision was based on relevant and material facts, and whether procedural fairness was observed.

The court held that the Minister had the authority to consider information relevant to the applicant's character, even if it was not disclosed during the visa application. The court reasoned that the Migration Act allowed the Minister to take into account any information that was relevant to the applicant's character when making a decision to cancel a visa. The court found that the Minister's decision was based on relevant and material facts, and that procedural fairness was observed. The court dismissed the applicant's argument that the Minister's decision was flawed because it was based on information that was not disclosed during the visa application process. The court also found that the applicant's arguments did not establish a sufficient ground for the court to grant leave to appeal from the judgment of Branson J.

As a result, the court dismissed the notice of motion and refused leave to appeal. The court found that the Minister's decision to cancel the applicant's visa was legally valid and properly exercised under the Migration Act. The court held that the Minister had the authority to consider information relevant to the applicant's character, and that the decision was based on relevant and material facts. The court also found that procedural fairness was observed, and that the applicant's arguments did not establish a sufficient ground for the court to grant leave to appeal. The court ordered that the notice of motion be dismissed with costs, and that leave to appeal from the judgment of Branson J be refused.

Orders of the court

1. The notice of motion be dismissed with costs.

2. Leave to appeal from the judgment of Branson J of 23 August 2004 be refused.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1381 OF 2004

BETWEEN:	APPLICANT S594 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	22 OCTOBER 2004
WHERE MADE:	SYDNEY

JUDGE:	WHITLAM J
DATE:	22 OCTOBER 2004
PLACE:	SYDNEY

Counsel for the applicant:	The applicant appeared in person
Solicitor for the respondent:	Mr M J Allatt from the Australian Government Solicitor
Date of hearing:	22 October 2004
Date of judgment:	22 October 2004