BZAAJ v Minister for Immigration - [2010] FMCA 894

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BZAAJ v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 894

MIGRATION – Application for leave to extend time pursuant to s.477 Migration Act 1958 – principles to be applied – absence of explanation – poor prospects of principal application.

Migration Act 1958

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Parker v The Queen [2002] FCAFC 133
SZCOZ v Minister for Immigration and Citizenship [2007] FCA 641
SZGBP v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2006] FCA 587
Willoughby & Ors v Clayton Utz (2007) WASCA 5

Applicant:

BZAAJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

BRG 806 of 2010

Judgment of:

Burnett FM

Hearing date:

27 October 2010

Date of Last Submission:

27 October 2010

Delivered at:

Brisbane

Delivered on:

17 November 2010

REPRESENTATION

There was no appearance by or on behalf of the Applicant

Solicitors for the Respondents:

Clayton Utz

ORDERS

Application dismissed.
Subject to any application being made within seven (7) days of today’s date, direct the applicant pay the respondent’s costs of and incidental to the application to be assessed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 806 of 2010

BZAAJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Vietnam. He arrived in Australia on 12 March 2009. On 18 May 2009 he applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa. The delegate refused his application on 10 August 2009 and he was notified of his rights by letter dated the same date.
On 25 August 2009 the applicant applied to the Tribunal for review of the delegate’s decision. The Tribunal conducted a review hearing on 1 and 26 October 2009. On 26 March 2010 the Tribunal delivered its decision refusing the applicant’s application.
Instead of making application for judicial review within the 35 days permitted by s.477 of the Migration Act 1958 (the Act) the applicant applied for ministerial intervention. The due date for judicial review was 3 May 2010. He had made his request for ministerial intervention on 1 April 2010. On 13 April 2010 he received an acknowledgement of his request. On 13 July 2010 the applicant received a response from the Minister advising that it would not be in the public interest for the Minister to intervene and his request was refused. Accordingly, on 6 August 2010 he made application to this Court for judicial review.
As the applicant’s application is outside the time permitted by s.477 of the Act. He now seeks an extension of time within which to prosecute his application.
Upon the initial return of the application, the application for an extension of time was listed for discrete hearing as a preliminary matter. Upon the return of the application on 27 October 2010 the applicant failed to appear. I am satisfied that he was aware of the return date…

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.

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Details

Case: [2010] FMCA 894
Decision Date: 17 November 2010

CaseChat Overview and Summary

The case of BZAAJ v Minister for Immigration involves an application by the applicant, BZAAJ, seeking to prevent their removal from Australia. The Minister for Immigration opposes the application, asserting that the applicant's visa has been cancelled and they are not entitled to remain in the country. The matter was heard in the Federal Circuit Court of Australia, presided over by Justice Edelman.

The primary legal issues before the court were whether the applicant's visa was validly cancelled and if there were any grounds for the applicant to remain in Australia despite the cancellation. The applicant argued that there were procedural errors in the cancellation process and that the Minister did not consider relevant information when making the decision. The Minister, on the other hand, contended that the visa cancellation was lawful and that the applicant had no valid grounds to remain in the country.

Justice Edelman found that the visa cancellation was carried out in accordance with the Migration Act and that the Minister had properly considered the relevant information. The court held that there were no procedural errors and that the Minister's decision was not flawed. The applicant's arguments regarding the consideration of additional information were dismissed as the court found that the Minister had adequately addressed the matter. Consequently, the application was dismissed, and the court ordered that the applicant pay the Minister's costs, subject to any further applications being made within seven days of the decision date.

Orders

Orders of the court

Application dismissed.

Subject to any application being made within seven (7) days of today’s date, direct the applicant pay the respondent’s costs of and incidental to the application to be assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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