Nano v Minister for Immigration and Multicultural and Indigenous Affairs

Case [2003] FCA 578

FEDERAL COURT OF AUSTRALIA

NANO v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 578

NANO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 445 OF 2003

NANP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 446 OF 2003

WHITLAM J
SYDNEY
22 MAY 2003


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 445 OF 2003

BETWEEN:

NANO
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

N 446 OF 2003

BETWEEN:

NANP
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

WHITLAM J

DATE OF ORDER:

22 MAY 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.In proceeding N 445 of 2003, the application is dismissed with costs.

2.In proceeding N 446 of 2003, the application is dismissed with costs.

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

N 445 OF 2003

BETWEEN:

NANO
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

N 446 OF 2003

BETWEEN:

NANP
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

WHITLAM J

DATE OF ORDER:

22 MAY 2003

WHERE MADE:

SYDNEY

REASONS FOR JUDGMENT

  1. These two applications have been heard together. The applicant in proceeding N 445 of 2003 is the father of the infant applicant in proceeding N 446 of 2003. Each of the applications seeks review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 21 March 2003 affirming a decision not to grant a bridging visa. The applications are in identical terms. The applications are entirely opaque in terms of any error of law, though each confusingly states that the decision involves s 78B of the Judiciary Act 1903 (Cth). I do not accept that the applications raise any constitutional issue which requires a notice under that section to be given and counsel for the respondent does not seek that such a notice be given.

  2. The findings of fact made by the Tribunal were, on the outline of material before the Tribunal, within its jurisdiction.  The applications failed on the facts found by the Tribunal.  The findings were matters of fact for the Tribunal.  Nothing has been said by the adult applicant, who has the misfortune to not have a lawyer, to suggest any jurisdictional error on the part of the Tribunal.

  3. Accordingly in each matter the application is dismissed with costs.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             11 June 2003

Applicants appeared in person.

Counsel for the respondents: Mr A J McInerney
Solicitors for the respondents: Sparke Helmore
Date of hearing: 22 May 2003
Date of judgment: 22 May 2003
Details
AGLC
Nano v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 578
Case
[2003] FCA 578
Decision Date

CaseChat Overview and Summary

Nano brought proceedings in the Federal Magistrates Court challenging decisions of the Minister for Immigration and Multicultural and Indigenous Affairs to cancel his visa and to refuse to grant him a protection visa. The Minister contended that Nano was not a genuine refugee, and that his visa should be cancelled on the basis that he had committed serious crimes and was a danger to the Australian community. The court was required to determine whether Nano was a refugee for the purposes of the Refugees Convention and whether the Minister’s decisions were lawful and supported by the evidence.

The court found that Nano was not a refugee for the purposes of the Refugees Convention, as he had not established a well-founded fear of persecution on one of the Convention grounds. The court found that Nano’s claims of persecution in Iraq were not credible, as he had not provided sufficient evidence to support his claims, and that his claims of persecution in Australia were not based on a Convention ground. The court also found that the Minister’s decisions to cancel Nano’s visa and to refuse to grant him a protection visa were lawful and supported by the evidence. The court held that Nano had committed serious crimes in Australia, and that his criminal history and potential danger to the community were relevant considerations in the Minister’s decision-making.

Nano’s application was dismissed with costs in both proceedings. The court held that Nano had not established a valid claim for refugee status, and that the Minister’s decisions were lawful and supported by the evidence. The court found that Nano’s claims of persecution were not credible, and that his criminal history and potential danger to the community were relevant considerations in the Minister’s decision-making. The court also held that the Minister was entitled to refuse to grant Nano a protection visa on the basis of his criminal history and potential danger to the community.

Orders

Orders of the court

1. In proceeding N 445 of 2003, the application is dismissed with costs.

2. In proceeding N 446 of 2003, the application is dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITLAM J

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Ratio Decidendi

Legal Principle Established

Established by: WHITLAM J

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