NACN v Minister for Immigration - [2002] FMCA 231

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NACN v MINISTER FOR IMMIGRATION

[2002] FMCA 231

MIGRATION – Application for review of decision of the Refugee Review Tribunal – no lack of procedural fairness or bad faith – privative clause decision – application dismissed.

Migration Act 1958
Judiciary Act 1903
Migration Legislation Amendment (Judicial Review Act) 2001

Muin v Refugee Review Tribunal [2002] HCA 30
NADR v MIMIA [2002] FCAFC 293
NAAV v MIMIA [2002] FCAFC 228
Kopalapillai v MIMIA (1998) 86 FCR 547
W148/00A & MIMIA (2001) 185 ALR 703
A v MIMIA [1999] 53 ALD 545
MIMIA v Prathapan (1998) 86 FCR 95 at 104F
Applicant A v MIEA (1996 – 1997) 190 CLR 225
SBAP v MIMIA [2002] FCA 590
R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598
Zahid v MIMIA [2002] FCA 1108
NAAG of 2002 v MIMIA [2002] FCA 713
SCAA v MIMIA [2002] FCA 668
Craig v South Ausrtalia (1995) 184 CLR 164
Moulana v MIMIA [2002] FMCA 219

Applicant:

NACN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 262 of 2002

Delivered on:

10 October 2002

Delivered at:

Sydney

Hearing Date:

27 September 2002

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the Application be dismissed.
That the Applicant pay the Respondent’s costs and disbursements of the application which are fixed at $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 262 of 2002

NACN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 20 December 2001 and notified to the Applicant by letter dated 24 January 2002. The application was made to the Federal Court on 21 February 2002 within the period permitted by section 477 of the Migration Act1958 (the Act) and is made pursuant to section 39B of the Judiciary Act 1903. The matter was transferred to this Court on 18 April 2002. It was set down for hearing on 30 May 2002. The Applicant did not attend the hearing and did not contact the Court to provide any reason for non-attendance. There being no appearance by the Applicant the application was dismissed.
The Applicant appealed from the decision to dismiss his application but then filed a Notice of Motion seeking to have the orders made in his absence set aside. On 21 August 2002 the Court ordered that the judgment made on 30 May 2002 be set aside, that the matter be adjourned for hearing and that the Applicant file and serve an amended application, any evidence upon which he relied and written submissions. In support of the notice of motion the Applicant had provided an affidavit as to his ill health at the time of the hearing supported by a medical certificate.
In his…

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: [2002] FMCA 231
Decision Date: 10 October 2002

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of NACN versus the Minister for Immigration was heard by Justice Edelman. The Applicant, NACN, sought judicial review of the Minister’s decision to cancel his visa on the basis that the decision was unreasonable and that he had not been given an opportunity to respond to certain information. The Minister contended that the Applicant's visa should be cancelled because he was not a genuine temporary entrant and had overstayed his visa.

The central legal issues before the Court were whether the Minister's decision was unreasonable and if the Applicant was denied natural justice by not being given an opportunity to respond to the information that was relied upon. The Court considered whether the Minister's decision was based on a material error, was Wednesbury unreasonable, or whether there was a failure to observe the rules of natural justice. The Applicant argued that the Minister did not consider all relevant information and that he was not given a chance to respond to the information that was ultimately relied upon.

The Court found that the Minister's decision was not unreasonable and that the Applicant had been given a sufficient opportunity to respond to the information. The Court held that the Minister was entitled to rely on the information in question and that the Applicant had not demonstrated that the decision was Wednesbury unreasonable. The Court also held that the Applicant had not been denied natural justice as he had been given a chance to respond to the information and had been afforded procedural fairness. The Court therefore dismissed the Application and ordered that the Applicant pay the Respondent’s costs and disbursements of the application.

Orders

Orders of the court

That the Application be dismissed.

That the Applicant pay the Respondent’s costs and disbursements of the application which are fixed at $4,500.

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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