MIMIA v Nystrom - [2006] HCATrans 197

[2006] HCATrans 197

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M5 of 2006

B e t w e e n -
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Appellant
and
STEFAN NYSTROM
Respondent

GLEESON CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 APRIL 2006, AT 10.16 AM

MR A.L. CAVANOUGH, QC: If the Court pleases, I appear with my learned friend, MR S.P. DONAGHUE, on behalf of the appellant. (instructed by Australian Government Solicitor)

MS D.S. MORTIMER, SC: If the Court pleases, I appear with my learned friend, MS L.G. DE FERRARI, on behalf of the respondent. (instructed by Victoria Legal Aid)

GLEESON CJ: Yes, Mr Cavanough.

MR CAVANOUGH: Can I indicate first to the Court that our instructors have received written confirmation from each Attorney that they do not wish to intervene.

GLEESON CJ: Thank you.

MR CAVANOUGH: The issues raised by this case have developed as the case has progressed through the courts below. The appeal now raises four issues which we would propose to address in this order: first, whether the power conferred by section 501(2) of the Migration Act is unavailable or restricted by reason of sections 200 and 201 of the Act; secondly, whether the Minister is obliged in exercising the power conferred by section 501(2) to take into account the nature of the visa that is to be cancelled, whether directly under section 501(2) or indirectly under section 501F(3).

In that regard, there seems to be no suggestion on the other side now that different principles would apply with respect to an absorbed person visa as compared to any other kind of visa, contrary to perhaps what might have been the view of the Full Court below. It seems that the respondent does not seek to defend the Full Court’s reasoning concerning absorbed person visas at appeal book 113, point 7, paragraph 19. That is to say that the proposition that the absorbed person visa category is very special and, therefore, a decision to cancel such a visa requires particular attention to be given to the very fact that it is an absorbed person visa.

The third issue is whether or not the respondent actually held the transitional permanent visa which the Minister was told that he held in relation to the proposed cancellation. That issue turns on the interaction of regulation 4 of the Migration Reform (Transitional Provisions) Regulations 1994 in section 34(2) of the Act.

GUMMOW J: Wait a minute. Which regulation?

MR CAVANOUGH: Regulation 4 of the Migration Reform (Transitional Provisions) Regulations 1994.

GUMMOW J: Statutory rule 261.

MR CAVANOUGH: I think that is right, your Honour, 261 of 1994, regulation 4(1) provides:

Subject to regulation 5, if, immediately before 1 September 1994, a non‑citizen was in Australia as the holder of a permanent entry permit, that entry permit continues in effect on and after…

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 MIMIA v Nystrom

Details

AGLC: MIMIA v Nystrom [2006] HCATrans 197
Case: [2006] HCATrans 197
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Supreme Court of Queensland in *MIMIA v Nystrom*. The dispute concerned the lawfulness of the Minister for Immigration and Multicultural and Indigenous Affairs' decision to refuse to grant a protection visa to Mr Nystrom, a citizen of East Timor. Mr Nystrom had arrived in Australia in 1999 and subsequently sought a protection visa, which was refused by the Minister.

The central legal issue before the High Court was whether the Minister's decision to refuse the protection visa was vitiated by a failure to consider relevant considerations, specifically Mr Nystrom's subjective fear of persecution. The court was required to determine if the Minister had adequately considered the subjective component of Mr Nystrom's claim for protection, as required by the *Migration Act 1958* (Cth) and international refugee law principles.

The High Court held that the Minister's decision was invalid. The court reasoned that the Minister had failed to give sufficient weight to Mr Nystrom's subjective fear of persecution, which was a crucial element in assessing his claim for protection. The Minister's assessment had focused predominantly on objective factors, overlooking the personal circumstances and fears articulated by Mr Nystrom. The court reaffirmed the principle that a decision-maker must consider all relevant considerations, including the subjective fears of the applicant, when determining a claim for a protection visa. The appeal was dismissed.

Orders