Fryer and Minister for Immigration, Multicultural and Indigenous Affairs - [2004] AATA 1166

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 1166
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2004/26

GENERAL ADMINISTRATIVE DIVISION )

Re JAMES ROBERT FRYER

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President Don Muller
Date8 November 2004
PlaceBrisbane

Decision
The Tribunal affirms the decision under review to refuse the application made by James Robert Fryer for a bridging visa, pursuant to the Migration Act 1958.

.............SIGNED.................................
D.W. MULLER
DEPUTY PRESIDENT

CATCHWORDS
IMMIGRATION – bridging visa – applicant not of good character – unacceptable risk to Australian public – decision to refuse visa affirmed
Immigration Act 1968: s102, 109, 501(1)(6) and (7)
REASONS FOR DECISION

Deputy President Don Muller

1.      James Robert Fryer is a citizen of New Zealand who has been living in Australia since he first entered Australia on 31 May 1997.
2.      At the time Mr. Fryer entered Australia on 31 May 1997, he was not required to make application for an Australian visa. He was automatically granted a Subclass TY444 Special Category Visa (444 visa), which did not involve any paper work and which he knew nothing about. He assumed that New Zealand citizens could come and go from New Zealand to Australia as they pleased.
3.      On 4 September 2004, Mr. Fryer’s visa was cancelled. He was arrested on the same day and placed in immigration detention at Darwin Correctional Centre.
4.      Mr. Fryer does not wish to return to New Zealand.
5.      The reason given for the cancellation of Mr. Fryer’s 444 visa was that he failed, on his return to Australia from a holiday in New Zealand in March/April 2002, to reveal on his passenger card the fact that he had been convicted of criminal offences in New Zealand in 1988. Section 102 of the Immigration Act 1958 requires non-citizens to fill in their passenger cards correctly. Section 109 provides for the cancellation of a visa if the information is incorrect.
6.      On 7 September 2004, Mr. Fryer lodged an application for review with the Migration Review Tribunal (MRT).
7.      On 7 September 2004, Mr. Fryer also lodged an application for a Bridging Visa E Subclass 050 (BVE) in order to be released from prison, pending the outcome of his appeal to the MRT.
8.      On 9 September 2004, Mr. Fryer’s application for a BVE was refused.
9.      Mr. Fryer seeks a review by this Tribunal of the decision to refuse the BVE.
10.     The reasons given for the refusal of the BVE were that:
(a)Mr. Fryer was deemed to have a substantial criminal record, and not to pass the character test set out in s.501 of the Act;
(b)His crimes were of a serious nature. The Australian community would expect his visa application to be refused;
(c)The Australian community expects non-citizens to obey Australian laws while in Australia.

11. Section 501 of the Act allows for the refusal of a visa on the ground that the Applicant does not pass the character…

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.

Continue reading Fryer and Minister for Immigration, Multicultural and Indige...

Details

AGLC: Fryer and Minister for Immigration, Multicultural and Indigenous Affairs [2004] AATA 1166
Case: [2004] AATA 1166
Decision Date: 8 November 2004

CaseChat Overview and Summary

The case of Fryer and Minister for Immigration, Multicultural and Indigenous Affairs involved James Robert Fryer, an applicant for a bridging visa who faced allegations of not being of good character and posing an unacceptable risk to the Australian public. The matter was brought before the Administrative Appeals Tribunal, where the tribunal was required to affirm or overturn the Minister’s decision to refuse the visa application under the Migration Act 1958.

The legal issues before the tribunal centred around the interpretation and application of sections 102, 109, 501(1)(6) and (7) of the Migration Act 1958. Specifically, the tribunal needed to determine whether the Minister's decision to refuse the visa application was justified, considering the applicant's character and the risk he posed to the public. The tribunal had to examine the evidence presented, including the applicant's criminal history and other factors relevant to his character and risk assessment.

The tribunal found that the Minister's decision was well-founded and affirmed the refusal of the bridging visa application. The tribunal concluded that the evidence supported the Minister's assessment that the applicant was not of good character and that he presented an unacceptable risk to the Australian public. Consequently, the tribunal upheld the Minister's decision, finding that it was reasonable and lawful under the Migration Act 1958.

The tribunal's decision was definitive, with no further appeal available to the applicant. The tribunal affirmed the Minister's decision to refuse the application for a bridging visa, ensuring that the public interest considerations were appropriately weighed in the decision-making process.

Orders

Orders of the court

The Tribunal affirms the decision under review to refuse the application made by James Robert Fryer for a bridging visa, pursuant to the Migration Act 1958.

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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GENERAL ADMINISTRATIVE DIVISION		)
Re		JAMES ROBERT FRYER