Djalic v Minister for Immigration - [2003] FMCA 569

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DJALIC v MINISTER FOR IMMIGRATION

[2003] FMCA 569

MIGRATION – VISA – Visa cancellation – where applicant granted residency in 1970 – whether inability of applicant to read and understand documents sent by DIMIA meant that he was denied procedural fairness – whether applicant was denied a proper hearing on basis that he did not have an opportunity to address substantive matters adverse to him contained in the Issues Paper – whether power to exclude or remove an alien under s.51(xix) of the Constitution can be considered a means of punishment for criminal offences – where Minister considered the expectation of the Australian community that non-citizens should obey Australian law while in Australia in reaching his decision – whether such consideration amounted to retributive policy.

Migration Act 1958 (Cth), s.501
The Constitution

Cameron v Cole (1944) 68 CLR 571
Re Anasis; Ex parte Total Australia Ltd (1985) 11 FCR 127
Osborne v Minister for Immigration & Multicultural & Indigenous Affairs [2002] 124 FCR 416
Nguyen v RRT (1997) 74 FCR 311
Sullivan v Secretary, Department of Transport (1978) 20 ALR 323
Kioa v West (1985)159 CLR 550
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte S154/2002 [2003] HCA 60
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069
M189 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1218
Chu Kheng Lim v Minister for Immigration & Local Government & Ethnic Affairs (1992) 176 CLR 1
Re Sergi and Minister for Immigration & Ethnic Affairs (1978-1980) 2 ALD 224

Re Gungor and Minister for Immigration & Ethnic Affairs (1980-1981) 3 ALD 225

Minister for Immigration & Ethnic Affairs v Pochi (1980) 31 ALR 666

Applicant:

DAVID DJALIC

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 1367 of 2003

Delivered on:

15 December 2003

Delivered at:

Sydney

Hearing date:

3 December 2003

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr G Kennett

Solicitors for the Applicant:

Christopher Levingston & Associates

Counsel for the Respondent:

Mr G Johnston

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1367 of 2003

DAVID DJALIC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

“This court has not closed its eyes to the drastic deprivations which may follow when a resident of this country is compelled by our Government to forsake all the bonds formed here and go to a foreign land where he has often no contemporary identification.” Woodby v Immigration Services (1966) 385 US 276 per Stewart J

David Djalic comes…

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: [2003] FMCA 569
Decision Date: 15 December 2003

CaseChat Overview and Summary

Djalic v Minister for Immigration is a case where the applicant, a non-citizen, sought judicial review of a decision made by the respondent, the Minister for Immigration, to cancel his visa. The Federal Circuit and Family Court of Australia was tasked with determining whether the Minister's decision was lawful and whether there were any jurisdictional errors or procedural unfairness in the decision-making process.

The central legal issues in this case pertained to the validity of the decision to cancel the applicant's visa and whether there were any errors in the process that led to this decision. The applicant argued that the Minister's decision was flawed due to alleged jurisdictional errors and procedural unfairness. Specifically, the applicant contended that the Minister had not properly considered certain information and had failed to adhere to the principles of procedural fairness.

The court addressed the applicant's arguments by examining the decision-making process and the evidence presented. It was found that the Minister had acted within their jurisdiction and had not made any errors that would render the decision invalid. The court emphasised that the Minister had considered the relevant information and that the decision was made in accordance with the Migration Act 1958. Furthermore, the court held that there was no procedural unfairness as the applicant had been given a fair opportunity to present his case. Consequently, the application for judicial review was dismissed. The court also ordered that the applicant pay the respondent's costs, as stipulated in the Federal Magistrates Court Rules.

Orders

Orders of the court

Application dismissed.

Applicant to pay the respondent’s costs assessed in the sum of $5000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

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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