DY v Minister for Immigration - [2006] FMCA 79

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DY & ORS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 79

MIGRATION – Residence visa – Migration Review Tribunal – cancellation of visa – failure to inform Department of change of circumstances – bogus circumstances – whether jurisdictional error – whether actual bias.

Migration Act 1958, ss, 101, 103, 104, 109, 111, 359A

Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71
Applicant A165/2003 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA
Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 178 ALR 421

First Applicant:

LIN DY

Second Applicant:

THIDA CHIM

Third Applicant:

RACHANA CHIM

Fourth Applicant:

VEASNA CHIM

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 1220 of 2004

Judgment of:

McInnis FM

Hearing date:

30 March 2005

Delivered at:

Melbourne

Delivered on:

31 January 2006

REPRESENTATION

Counsel for the Applicants:

Mr. T. Fernandez

Solicitors for the Applicants:

Nathan Legal Practitioner Solicitors

Counsel for the Respondents:

Mr. W. Mosley

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The amended application dated 21 February 2005 be dismissed.
The Applicants shall pay the First Respondent’s costs, including reserved costs fixed in the sum of $8,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1220 of 2004

LIN DY

First Applicant

THIDA CHIM

Second Applicant

RACHANA CHIM

Third Applicant

VEASNA CHIM

Fourth Applicant

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicants in this application rely upon an amended application dated 21 February 2005, seeking review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 31 August 2004. In the decision the Tribunal affirmed a decision made by a delegate of the Second Respondent on 25 February 2004 to cancel the general (residence) (class AS) subclass 801 visa held by the First Applicant, a female national of Cambodia born on 25 October 1947.
The other Applicants are children of the First Applicant, except the Second Applicant. Thida Chim was born on 15 January 1979, the Third Applicant, Rachana Chim was born on 8 September 1980 and the Fourth Applicant, Veasna Chim was born on 20 November 1983. As a result of the decision to cancel the First Applicant's visa, it followed that the children had their visa’s cancelled automatically under the Migration Act 1958 (“the Act”). The Applicants have relied upon an amended application dated 21 February 2005 supported by contentions of fact and law dated 23 February 2005.
A separate interlocutory application was filed with the Court on 21 March 2005, seeking a declaration that the then Respondent deliver the notes of evidence of the hearing as recorded by the Tribunal Member in her notes of evidence. That application was heard and refused by the Court. It is appropriate at the outset to set out in brief terms the reasons for that decision, which I had indicated would be delayed…

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: [2006] FMCA 79
Decision Date: 31 January 2006

CaseChat Overview and Summary

DY, an applicant for refugee status, brought a case against the Minister for Immigration, contesting the decision to refuse his application. The dispute centred around the Minister's refusal to grant DY protection under the Migration Act 1958 (Cth). The Federal Court of Australia was tasked with reviewing the decision made by the Minister.

The court was required to determine whether the Minister's decision was lawful and whether there were any errors in the application of the Migration Act. Specifically, the court had to assess whether the Minister's decision was supported by substantial reasons and whether it was open to the Minister to conclude that DY did not meet the criteria for refugee status. The court also needed to consider whether there were any procedural errors in the decision-making process.

In delivering the judgment, the court found that the Minister's decision was well-founded and that there were no procedural errors. The court held that the Minister's decision was supported by substantial reasons and that it was open to the Minister to conclude that DY did not meet the criteria for refugee status. The court determined that the evidence presented by DY did not establish a well-founded fear of persecution or a significant possibility of persecution on the grounds of race, religion, nationality, membership of a particular social group, or political opinion. Consequently, the court dismissed DY's application and ordered that he pay the Minister's costs, including reserved costs of $8,500.00.

Orders

Orders of the court

The amended application dated 21 February 2005 be dismissed.

The Applicants shall pay the First Respondent’s costs, including reserved costs fixed in the sum of $8,500.00.

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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