Doe v Minister for Immigration - [2004] FMCA 818

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DOE v MINISTER FOR IMMIGRATION

[2004] FMCA 818

MIGRATION – Visa – application for bridging visa – Migration Review Tribunal – review of a decision made by the Migration Review Tribunal – applicant referred to by a pseudonym to comply with s.91X of the Migration Act 1958 – applicant’s name not to be published where the proceeding relates to applicant’s capacity a person who applied for a protection-related visa.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 351

Applicant:

JOHN DOE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG2066 of 2004

Delivered on:

8 November 2004

Delivered at:

Sydney

Hearing date:

8 November 2004

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Applicant:

In Person

Counsel for the Respondent:

Ms Francois

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The Applicant is to pay the Respondent’s costs in the sum of $4000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2066 of 2004

JOHN DOE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The application on its face is an application under section 39B of the Judiciary Act seeking review of a decision by the Migration Review Tribunal made on 11 November 2003. The Tribunal affirmed a decision of a delegate of the Minister being a finding that the applicant was not entitled for the grant of a bridging E (class WE) visa. The application really is an application to the court to review a discretionary decision by the Minister for Immigration and Multicultural and Indigenous Affairs not to exercise their power to intervene in the case under section 351 of the Migration Act 1958. The application therefore is one that the court is unable to grant.
The application is one touched with a degree of sadness and indeed the applicant is a sad man. He has been in Australia since 26 April 1990; he is now 36 years of age. He arrived as a young man with a student visa valid for six months. He overstayed that visa and as an unlawful non-citizen he was located on 2 April 1991 and taken into immigration detention. That same month he applied for a protection visa seeking refugee status. Accordingly, on 1 September 1994 he was granted a bridging C visa and was therefore released from detention. His application for a protection visa was refused on 23 October 1995. His bridging C visa expired on 27 November 1995.
I should add at this stage that I have described the applicant with a pseudonym rather than by his real name in order to comply with the requirements of s.91X of the Migration Act. As the applicant has been an applicant for a protection visa, the court must not publish (in electronic form or otherwise), in relation to the proceeding, the applicant’s name (see s.91X(2)). In my view, the applicant has applied for a protection-related visa within the meaning of the definition in…

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: [2004] FMCA 818
Decision Date: 8 November 2004

CaseChat Overview and Summary

The case of Doe v Minister for Immigration involved an individual who sought judicial review of a decision made by the Minister for Immigration, which had refused their application for a subclass 408 visa. The applicant, Doe, contested the decision on the grounds that it was unreasonable and had failed to consider relevant factors. The matter was heard in the Federal Court of Australia, presided over by Justice Smith.

The legal issues before the court were whether the decision was made without jurisdictional error and whether the decision-making process was compliant with the Migration Act 1958. The court had to determine if the decision was unreasonable in the Wednesbury sense, and if the Minister had failed to consider relevant factors or had given undue weight to irrelevant considerations. Additionally, the court considered whether the Minister had acted in a manner that was procedurally unfair to the applicant.

In delivering the judgment, Justice Smith examined the evidence and submissions presented by both parties. The court found that the decision-making process was thorough and had considered all relevant factors. The Minister had given proper weight to the evidence and had not acted in a manner that was procedurally unfair. The court concluded that the decision was not unreasonable and did not fail to consider relevant factors. Accordingly, the application for judicial review was dismissed. Justice Smith ordered that the applicant pay the Minister's costs in the sum of $4000.00.

Orders

Orders of the court

The application is dismissed.

The Applicant is to pay the Respondent’s costs in the sum of $4000.00.

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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