Kinikini v Minister for Immigration - [2005] FMCA 205

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KINIKINI v MINISTER FOR IMMIGRATION

[2005] FMCA 205

MIGRATION – Visa – visa cancellation – where applicant granted residency in 1993 – 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 – whether such consideration amounted to retributive policy.

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

Minister for Immigration & Ethnic Affairs v Pochi (1980) 31 ALR 666-cited
Djalic v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 569 - cited
Djalic v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 151
Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1069 - cited
Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 172
Ayan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 196 ALR 332 – cited
Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 298 – cited
Chu Kheng Lim v MILGEA (1992) 178 CLR 1 – cited
Koon Wing Lau v Calwell (1949) 80 CLR 533 - cited

Applicant:

NACANIELI KINIKINI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1488 of 2003

Judgment of:

Scarlett FM

Hearing date:

26 February 2004

Date of Last Submission:

8 and 10 December 2004

Delivered at:

Sydney

Delivered on:

4 March 2005

REPRESENTATION

Counsel for the Applicant:

Mr Kennett

Solicitors for the Applicant:

Christopher Levingston & Associates

Counsel for the Respondent:

Mr Johnson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Application is dismissed.
The Applicant is to pay the Respondent’s costs of this application fixed in the sum of $ 5,300.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1488 of 2003

NACANIELI KINIKINI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

The applicant seeks judicial review of a decision made by the then Minister for Immigration and Multicultural and Indigenous Affairs on 30^th June 2003 to exercise his discretion under subsection 501(2) of the Migration Act 1958 to cancel his Resident Return Visa.
Section 501 of the Act states:
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6)
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.

Background

The applicant is a citizen of Fiji. He was born on 14^th November 1980. He first arrived in Australia on 2^nd June 1990 with his parents. He has lived in Australia ever since, although he has spent…

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: [2005] FMCA 205
Decision Date: 4 March 2005

CaseChat Overview and Summary

The applicant, Kinikini, sought judicial review of a decision by the Minister for Immigration to cancel his visa on the grounds of character. The matter was heard in the Federal Court of Australia. Kinikini, a non-citizen, argued that the Minister's decision was unlawful because it was based on an incorrect application of the character test, and because the Minister failed to consider relevant mitigating factors.

The court considered whether the Minister's decision was based on an error of law and whether the Minister failed to take into account relevant considerations. The court held that the Minister's decision was not based on an error of law and that the Minister had considered all relevant factors in reaching his decision. The court found that the Minister was entitled to form the view that Kinikini did not meet the character requirement for visa holder, given his criminal history and the seriousness of the offences.

Accordingly, the court dismissed the application and ordered that the applicant pay the respondent's costs of the application, fixed in the sum of $5,300. The court held that there were no grounds to grant the relief sought by the applicant, and that the Minister's decision was lawful. The applicant's argument that the Minister failed to consider relevant mitigating factors was rejected, as the court found that the Minister had given proper consideration to all relevant matters.

Orders

Orders of the court

The Application is dismissed.

The Applicant is to pay the Respondent’s costs of this application fixed in the sum of $ 5,300.00.

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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