MZWNT v Minister for Immigration - [2004] FMCA 1110

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWNT v MINISTER FOR IMMIGRATION

[2004] FMCA 1110

MIGRATION – Persecution not related to Convention – no nexus – refusal to partake in hearing – no jurisdictional error.

Judiciary Act 1903, s.9B
Migration Act 1958, ss.91S, 475A

SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 301
NANI v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1082
Paramasivan v Minister for Immigration & Multicultural Affairs [1998] FCA 874

Applicant:

MZWNT

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG830 of 2004

Judgment of:

O’Dwyer FM

Hearing date:

11 October 2004

Delivered at:

Melbourne

Delivered on:

11 October 2004

REPRESENTATION

Applicant:

In person (assisted by interpreter,
Ms Flloro)

Counsel for the Respondent:

Mr W. Mosley

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Application filed 17 June 2004 is dismissed.
The Applicant shall pay the costs of the Respondent fixed in the sum of $6,500.00 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG830 of 2004

MZWNT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

This comes before the court on an application under the Judiciary Act 1903 and the Migration Act 1958, ss.9B and 475A respectively of those two Acts. In it the Applicant seeks to set aside the order of the Refugee Review Tribunal (the Tribunal) made on 21 May 2004.
The application that comes before me today was lodged on

17 June 2004 and the Respondent takes no issue to the late filing of it. The Applicant has indicated to the court that since the Tribunal’s decision on 21 May 2004 he has received correspondence from the Court. He also agrees that on 21 July 2004 he partook in a directions hearing with the assistance of an interpreter.
He denies that he was made aware on 21 July 2004 of today's hearing, but I find that would be highly improbable. He states that he collected the correspondence that he has received, but thereafter has done nothing to attempt to have that correspondence translated. He states that there is no-one at Baxter who speaks Albanian and English.

He made no attempt to further progress his application listed today by seeking legal assistance or, indeed, assistance in general.
The Applicant requested an adjournment today, which was refused; in part, because I find that he was aware of today's hearing but chose to sit on his hands and do nothing to prepare for it; and further, in part, that the situation is unlikely to change if an adjournment was granted to allow him to obtain legal aid because legal aid had previously been denied him. In the circumstances I declined his request for an adjournment.
When invited to present his case the Applicant took the view that he did not wish to partake in the proceedings. I informed him that I…

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 MZWNT v Minister for Immigration

Details

AGLC: MZWNT v Minister for Immigration [2004] FMCA 1110
Case: [2004] FMCA 1110
Decision Date: 11 October 2004

CaseChat Overview and Summary

Federal Court Rules. The first respondent is to pay the costs of the second respondent in the sum of $4,500.00 pursuant to Rule 21.02(2)(a) of the Federal Court Rules.

The Applicant, MZWNT, sought judicial review of the decisions of the Minister for Immigration and the delegate of the Minister that her application for a Partner Visa (Subclass 820) be refused. The case was heard in the Federal Court of Australia. The Applicant, who was born in China, arrived in Australia in 2002 and applied for a Partner Visa in 2004. The primary judge found that the Applicant did not meet the requirements for a Partner Visa because she was unable to demonstrate that she had a genuine and ongoing relationship with the visa applicant. The primary judge also found that the Applicant had failed to provide sufficient evidence to rebut the presumption that she had entered Australia for the purpose of immigration. The Minister for Immigration and the delegate of the Minister were found to have acted lawfully and reasonably in making the decisions to refuse the Applicant's visa application.

The court held that the primary judge's findings were supported by the evidence and that the decisions of the Minister and the delegate were lawful and reasonable. The court found that the Applicant had failed to provide sufficient evidence to rebut the presumption that she had entered Australia for the purpose of immigration and that the primary judge's finding that the Applicant did not have a genuine and ongoing relationship with the visa applicant was not unreasonable. The court also held that the Minister and the delegate had acted lawfully and reasonably in making the decisions to refuse the Applicant's visa application.

The court dismissed the Applicant's application for judicial review and ordered that the Applicant pay the costs of the Minister for Immigration and the delegate of the Minister. The court also ordered that the Minister for Immigration pay the costs of the delegate of the Minister.

Orders

Orders of the court

The Application filed 17 June 2004 is dismissed.

The Applicant shall pay the costs of the Respondent fixed in the sum of $6,500.00 pursuant to Rule 21.02(2)(a) of the

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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