Morgani v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1160

FEDERAL COURT OF AUSTRALIA

Morgani v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1160

ANTONIO MORGANI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1463 OF 2003

EMMETT J
7 OCTOBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1463 OF 2003

BETWEEN:	ANTONIO MORGANI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	7 OCTOBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        the application be refused;

2.        the applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1463 OF 2003

BETWEEN:	ANTONIO MORGANI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE:	7 OCTOBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me an application for an extension of time in which to file and serve a notice of appeal.  The application relates to orders made by the Federal Magistrates Court on 28 August 2003: see Morgani v Minister for Immigration [2003] FMCA 364. The application for an extension of time in which to file and serve a notice of appeal was filed on 23 September 2003. The time for lodging a notice of appeal expired on 18 September 2003. The applicant appears in person although he was represented by a solicitor before the Magistrates Court.

2. The affidavit in support of the application says that the application is made:

   ‘... as these matters are very complex and difficult to formulate as you can appreciate.  Your co-operation in overseeing this matter is deeply appreciated.’

   No explanation is contained in the affidavit for the failure to comply with the Federal Court` Rules. 

3. However, the applicant said from the bar table that he had been told that he had 28 days within which to appeal from the decision of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’), that was the subject of the proceeding before the Federal Magistrates Court. The Minister’s decision was one made under s 501 of the Migration Act 1958 (Cth) (‘the Act’) to cancel the applicant’s visa on the ground that the Minister reasonably suspected that the applicant did not pass the character test and the applicant did not satisfy the Minister that he passed the character test, as that term is defined in the Act. The applicant said from the bar table that he assumed, from the statement that he had 28 days within which to appeal from the Minister’s decision, that he also had 28 days within which to appeal from the decision of the Magistrates Court to this Court.

4. I am prepared to accept, for the purposes of this application, that the applicant did erroneously believe that he had 28 days within which to lodge a notice of appeal from the decision of the Magistrates Court.  However, it seems to me that, before granting an extension of time, I should be satisfied that there is some prospect of success in the appeal.

5. The applicant was represented before the Magistrates Court by a solicitor who made a number of submissions on his behalf.  Three contentions were advanced.  The first was that the decision of the Minister was tainted by jurisdictional error in that the Minister failed to take certain relevant matters into consideration on arriving at the visa cancellation decision.  Specifically, the complaint was that the Minister over-emphasised the risk of recidivism.  The Magistrate was unable to find that there was anything in the Minister’s conclusions on that point that would permit review of the decision.  To do so would be merely to substitute views of the Court for those held by the Minister. 

6. Secondly, it was suggested that, in making his decision, the Minister had followed rigidly the statutory provisions of s 499 of the Act and had therefore unlawfully fettered the discretion conferred upon him by s 501. Specifically, it was said that the Minister placed too much weight on the national interest and not enough on other personal circumstances. It was submitted on behalf of the applicant that the relevant direction issued under s 499 fettered the Minister in his discretion by requiring him to give overriding weight to the national interest and the protection of the Australian community and therefore not to consider any other matters as outweighing those.

7. The Magistrate observed that it is not necessary for the Minister in his reasons to rehearse every submission and then deal with it.  Provided it can be clearly seen from the document as a whole that the relevant matters were considered, that is sufficient.  The Minister is not obliged to set out every matter he took into account when making his decision and the Court should avoid reconsideration of the merits of a decision when reviewing the reasons for a decision.  The Magistrate therefore concluded that that ground was not made out.

8. Finally, an argument was advanced that the decision of the Minister was tainted with Wednesbury unreasonableness.  The Magistrate concluded that the matters raised on behalf of the applicant go only to the soundness of the Minister’s decision.  The magistrate was not satisfied that there was a material error on the part of the Minister nor that the decision was unreasonable in the Wednesbury sense. 

9. Pursuant to a direction given to the applicant, a draft notice of appeal was prepared.  The only grounds specified in the notice of appeal are that the Magistrates Court erred in failing to hold the purported exercise by the Minister of his power to cancel the appellant’s visa unreasonable.  The applicant indicated from the bar table, in the course of the hearing of the application, that he wished to contend that there was inconsistency between the Minister’s decision concerning the applicant and other decisions made by the Minister in like circumstances. 

10. There does not appear to me to be any substance in the grounds as they are so advanced and, therefore, there does not appear to me to be any utility in extending the time for filing a notice of appeal.  Accordingly, the application should be refused with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             20 October 2003

Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 October 2003
Date of Judgment:	7 October 2003