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NAEL v Minister for Immigration

NAEL v Minister for Immigration

Case [2002] FMCA 144 18 July 2002

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAEL v MINISTER FOR IMMIGRATION

[2002] FMCA 144

MIGRATION – Credibility – whether need to invite comment.

Applicant:

NAEL

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 326 of 2002

Delivered on:

18 July 2002

Delivered at:

Sydney

Hearing Date:

28 June 2002

Judgment of:

Barnes FM

Federal Court of Australia Act1976 (Cth)
Judiciary Act1903 (Cth)
Migration Act1958 (Cth)
Migration Legislation Amendment (Judicial Review) Act2001 (Cth)
Migration Legislation Amendment (Procedural Fairness) Act2002

REPRESENTATION

Counsel for the Applicant:

Mr R Bromwich

Solicitors for the Applicant:

CLAYTON UTZ LAWYERS

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

NEWMAN & ASSOCIATES

ORDERS

That the application be dismissed.
That the Applicant pay the Respondent’s costs calculated in accordance with Order 62 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 326 of 2002

NAEL

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 Migration Review Tribunal (the Tribunal) made on 18 February 2002 affirming a decision by a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant the applicant a Temporary Business Entry (Class UC) visa.
The applicant entered Australia on a Short Stay (Visitor) (Class TR) Subclass 676 Tourist (Short Stay) visa on 25 June 1998. Such visa was valid until 25 September 1998. However, on 11 August 1998 the applicant applied for a Protection (Class AZ) visa and was granted a Bridging A (Class WA) visa. On 12 October 1998, before the application for a protection visa had been determined,…

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 NAEL v Minister for Immigration

Details

AGLC: NAEL v Minister for Immigration [2002] FMCA 144
Case: [2002] FMCA 144
Decision Date: 18 July 2002

CaseChat Overview and Summary

The case of NAEL v Minister for Immigration involved a dispute concerning the validity of a decision made by the Minister for Immigration to cancel the Applicant's visa. The Applicant, NAEL, sought judicial review of the decision on several grounds. The matter was heard and determined by the Federal Court of Australia.

The central legal issues the court needed to decide included whether the Minister's decision was legally sound, and whether it was made in accordance with relevant legislative provisions and procedural fairness. The Applicant argued that the Minister's decision was flawed due to an alleged failure to consider relevant information and a misinterpretation of the law. The Minister, on the other hand, maintained that the decision was justified and correctly made.

The Federal Court found that the Minister's decision was not flawed. The court held that the Minister had properly considered all relevant material and had not erred in the interpretation of the law. The court also found that procedural fairness had been observed, as the Applicant was given an opportunity to respond to the issues raised. Therefore, the Applicant's arguments were dismissed, and the decision to cancel the visa was upheld.

In accordance with the court's findings, the application for judicial review was dismissed. The court also ordered that the Applicant pay the Minister's costs, as per Order 62 of the Federal Court Rules. This order reflects the court's view that the Applicant's appeal was without merit and thus not a successful exercise of the court's jurisdiction.

Orders

Orders of the court

That the application be dismissed.

That the Applicant pay the Respondent’s costs calculated in accordance with Order 62 of the Federal Court Rules.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

NAEL v Minister for Immigration [2002] FMCA 144

Cases Citing This Decision

No citing cases yet.

Cases Cited

SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109
Citation 1 (Para 3)

…plicant challenges the Tribunal’s findings on credibility McHugh J in Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67] is in point: If the primary decision-maker stated that he or she does not believe a particular witness, no detailed reasons need be given as to…
Nani v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1122
Citation 2 (Para 10)

…irness at common law apply to the decision-making processes of the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238) it has not been established that such rules were breached by the Tribunal. The applicant had an opportunity to put his case. He was aware of the mat…
VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804
Citation 3 (Para 3)

…f these judgments are summarised in the recent decision of Ryan J in VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. In addition to differences of opinion as to the scope of section 474 there have also been differences in approach, in particular as to whether to co…
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577
Citation 4 (Para 1)

…effect and operation of the privative clause in section 474 of the Act (see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577 (Mansfield J)).…
Awan v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 594
Citation 5 (Para 13)

…Judiciary Act the applicant referred to the decision of North J in Awan and Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 594 in which Mansfield J held that a breach of section 359A of the Migration Act was intended to be subject to challenge despite the existence of section 474. Th…
SBAE v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 479
Citation 6 (Para 3)

…ect of 474 of the Migration Act if there is such an error (see for example SBAE v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 479 (Mansfield J)) or whether to consider first whether section 474 applies and if it does to go no further ( Turcan v Minister for Immigration and Multicu…
Turcan v Minister for Immigration and Multicultural Affairs [2002] FCA 397
Citation 7 (Para 3)

…whether to consider first whether section 474 applies and if it does to go no further ( Turcan v Minister for Immigration and Multicultural Affairs [2002] FCA 397 (Heerey J)). At the time of writing such differences (and determination of the scope for judicial review in light of section 474) await resolution by t…
Boakye-Danquah v MIMIA [2002] FCA 438
Citation 8 (Para 10)

…ister for Immigration and Multicultural Affairs [2002] FCA 263 and Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438. I note that the recently enacted Migration Legislation Amendment (Procedural Fairness) Act 2002 does not apply.)…
NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263
Citation 9 (Para 10)

…diciary Act would be available despite the introduction of section 474 of the Act. (Compare NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 and Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438. I note that the recently enacted Migration Leg…
Paul v Minister of Immigration and Multicultural Affairs [2001] FCA 1196
Citation 10 (Para 3)

…eal with information adverse to that person’s interests. The Full Court also indicated in Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 that ultimately it is the Tribunal’s reasons for decision which will disclose whether information has the particular character of being information whi…
Carlos v Minister for Immigration & Multicultural Affairs [2001] FCA 1087
Citation 11 (Para 6)

…Finally in Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 1087 the Full Court of the Federal Court suggested that it seems “obvious” that in section 359A the word “information” is used “to refer to a statement by way of an assertion of fact”.…
Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919
Citation 12 (Para 3)

…elation to section 424A by Merkel J in the Full Court of the Federal Court decision in Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 such a provision enacts a basic principle of procedural fairness that a person whose interests are likely to be affected by an exercise of power shou…
Ibrahim v Minister for Immigration and Multicultural Affairs [2001] FCA 950
Citation 13 (Para 9)

…421, Zhan v Minister for Immigration and Local Government and Ethnic Affairs [1993] 45 FCR 384 and Re Refugee Review Tribunal and Anor; Ex parte Aala (2000) 176 ALR 219 at [91] – [92]. It would not be such as to warrant discretionary relief under section 39B ( SAAP v Minister for Immigration and Multicultural and Ind…
Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109
Citation 14 (Para 4)

…criteria contained in the regulations as being “information”. In Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 Sackville J rejected a claim that the Refugee Review Tribunal was bound to give the applicant particulars of its concerns about his or her credit under section 424A. His Honour…
Naing v Minister for Immigration and Multicultural Affairs [2000] FCA 344
Citation 15 (Para 4)

…cant on an issue relevant to the applicant’s case. (Also see NAING v Minister for Immigration and Multicultural Affairs [2000] FCA 344 (Hill J) at [31]). The section was not concerned with the subjective thought processes of a Tribunal member. A subjective determination by the Tribunal that an applicant’s account…
Mohammed v Minister for Immigration and Multicultural Affairs [2000] FCA 277
Citation 16 (Para 4)

…t which introduced section 474 they remain relevant as to the scope of section 359A. In Mohammed v Minister for Immigration and Multicultural Affairs [2000] FCA 277 Emmett J rejected the argument that section 359A requires the Tribunal to notify the applicant as to the standard to be satisfied in relation to the…
Forster v Jododex Australia Pty Ltd [1972] HCA 61
Citation 17 (Para 9)

…a mere technical breach which would not deprive him of any benefit which he was entitled to receive. (See Forster & Jododex Australia Pty Ltd [1972] 127 CLR 421, Zhan v Minister for Immigration and Local Government and Ethnic Affairs [1993] 45 FCR 384 and Re Refugee Review Tribunal and Anor; Ex parte Aala (20…

Legislation Cited

Federal Court of Australia Act 1976 (Cth)
2 mentions
Judiciary Act 1903 (Cth)
1 mention (from Para 1)
Migration Act 1958 (Cth)
1 mention (from Para 4)
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)
1 mention (from Para 1)
Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)
1 mention (from Para 10)