Kent v Minister for Immigration - [2007] FMCA 2162

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KENT v MINISTER FOR IMMIGRATION

[2007] FMCA 2162

MIGRATION – Decision to remove person from Australia – relevant considerations – medical records.

PRACTICE & PROCEDURE – Costs – injunction – procedural fairness – availability of documentation.

Migration Act 1958, ss.198, 198(6), 417

Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368; (2006) 155 FCR 465; (2006) 236 ALR 99; (2006) 97 ALD 68
Li v Minister for Immigration & Multicultural Affairs [2002] FCAFC 181

Applicant:

MR KENT

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File number:

MLG 1134 of 2007

Judgment of:

Riethmuller FM

Hearing date:

10 September 2007

Date of last submission:

10 September 2007

Delivered at:

Melbourne

Delivered on:

11 September 2007

REPRESENTATION

Counsel for the Applicant:

Ms N. Karapanagiotidis

Solicitors for the Applicant:

Asylum Seeker Resource Centre

Counsel for the Respondent:

Ms Miller

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The injunction order made 17 August 2007 be dissolved.
The application filed 17 August 2007 be dismissed.
There be no orders as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Kent v Minister for Immigration is approved pursuant to s.91X of the Migration Act 1958.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 1134 of 2007

MR KENT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

The applicant arrived in Australia on 8 August 2005 on a ship. He applied for a protection visa on 25 August 2005 which was refused by a delegate of the minister. Subsequently, this was reviewed by the Refugee Review Tribunal who also rejected his claim. Judicial review proceedings were brought, and ultimately the Full Court of the Federal Court dismissed the appeal on 22 August 2006, bringing that matter to a close. Since then, there have been two applications by the applicant to the Minister pursuant to s.417, seeking that the Minister issue a visa to him, both of which have been refused.
The matter comes before the court today on an application to review a decision made by an officer of the minister's department under s.198 to remove the applicant from Australia and return him to Pakistan. The relevant part of s.198 is s.198(6) which contains a number of subclauses. It is not disputed that each of the subclauses has been fulfilled in this case. The only dispute is whether or not it was reasonably practicable to remove the applicant from Australia at the time that the Minister sought to do so.
This leads to four issues that were argued before me. The first was whether or not the question of whether he is medically fit to travel is a jurisdictional fact in determining whether it is reasonably practicable to remove him from the country, and therefore a factor for the court to determine on evidence; secondly, if it is a matter for the officer to determine, whether the officer failed to take relevant considerations into…

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.

Keep reading for free

Create a free CaseChat account to read Kent v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] FMCA 2162
Decision Date

CaseChat Overview and Summary

The applicant, Mr Kent, sought judicial review of a decision made by the Minister for Immigration and Citizenship to remove him from Australia and return him to Pakistan. The Federal Magistrates Court considered whether the decision was lawful, focusing on the officer's assessment of Mr Kent's medical fitness for travel, the consideration of relevant information, the relevance of the information considered, and whether the decision was unreasonable. The court found that the officer's assessment of Mr Kent's medical fitness was a matter for the officer, not the court, and that the officer had considered relevant information, including medical opinions, in making the decision. The officer's decision was not unreasonable, as it was based on sufficient evidence. The court refused the application and dissolved the interim injunction, and made no order as to costs, considering the unusual circumstances of the case and the nature of the decision.

The court held that the question of whether it was reasonably practicable to remove Mr Kent from Australia was a matter for the officer to determine, not the court, and that the officer had considered relevant information, including medical opinions, in making the decision. The court found that the officer had not failed to take relevant considerations into account or had taken irrelevant considerations into account, and that the decision was not so unreasonable that no reasonable decision-maker would have made it. The court emphasised that it was not for the court to undertake a merits review of the decision, but rather to determine whether the decision was lawful. The court refused the application and dissolved the interim injunction, and made no order as to costs, considering the unusual circumstances of the case and the nature of the decision.

Orders