NAOR v Minister for Immigration - [2003] FMCA 37

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAOR v MINISTER FOR IMMIGRATION

[2003] FMCA 37

MIGRATION – Application for review of Decision of Refugee Review Tribunal – no jurisdictional error – privative clause decision – application dismissed.

Judiciary Act 1903

NAAV v MIMIA [2002] FCAFC 228
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
R v Murray; Ex parte Proctor (1949) 77 CLR 387
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte applicant S134/2002 [2003] HCA 1
SBBS v MIMIA [2002] FCAFC 361
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs v Yusuf [2001] ALJR 1105

Applicant:

NAOR

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ871 of 2002

Delivered on:

27 February 2003

Delivered at:

Sydney

Hearing Date:

14 February 2003

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Ms M. Allars

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That the application is dismissed.
That the Applicant pay the Respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ871 of 2002

NAOR

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) made on 24 May 2002 and handed down on

18 June 2002 affirming a decision of a delegate of the respondent to refuse to grant a protection visa to the applicant.
The applicant applied to the Federal Court on 16 July 2002. The matter was transferred to this Court on 5 September 2002 by Branson J.
The applicant, who was born in Turkey, is a citizen of Turkey and of Northern Cyprus. Since 1985 he has been resident in Northern Cyprus. He arrived in Australia on 10 February 2001 on a Turkish passport accompanied by his wife and two children. On 26 April 2001 he sought a protection visa. His wife and children also sought protection visas but no specific Convention claims were made on their behalf.
On 14 June 2001 a delegate of the Minister refused to grant protection visas to the applicant and his family and on 26 June 2001 the applicants applied to the Tribunal for review of that decision.
The applicant claims to fear persecution if he returns to either Northern Cyprus or Turkey on the ground of his Kurdish ethnicity and his political opinion. He was born in Turkey and went to Northern Cyprus in 1985. He was not a member of any political organisation but had pro-Kurdish views and had met with, and engaged in political discussions with, students and others at a restaurant he operated in Northern Cyprus. He claimed that he was terrorised and that demands for protection money were made by members of the para-military MHP (Nationalist Action Party) and similar organisations, that corrupt police officers demanded protection from him and…

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: [2003] FMCA 37
Decision Date: 27 February 2003

CaseChat Overview and Summary

NAOR v Minister for Immigration was a case where the Applicant, NAOR, sought to challenge the decision of the Minister for Immigration to cancel their visa. The case was heard in the Federal Circuit Court of Australia. The Applicant, NAOR, had their visa cancelled on the basis that their presence in Australia was contrary to the public interest. NAOR contended that the Minister’s decision was flawed and sought to have the decision overturned.

The legal issues that the court was required to decide were whether the Minister’s decision to cancel the Applicant’s visa was lawful and whether the decision was based on valid reasons. The court also had to consider whether the Minister had considered all relevant information before making the decision. The Applicant argued that the decision was flawed as it was based on irrelevant considerations and failed to take into account relevant information.

The court found that the Minister’s decision was lawful and based on valid reasons. The court held that the Minister had considered all relevant information before making the decision and that the decision was not based on irrelevant considerations. The court found that the Applicant’s visa was properly cancelled as it was contrary to the public interest for them to remain in Australia. The Applicant’s application was dismissed, and the Applicant was ordered to pay the Respondent’s costs.

Orders

Orders of the court

That the application is dismissed.

That the Applicant pay the Respondent’s costs.

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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