NAOZ v Minister for Immigration - [2002] FMCA 277

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAOZ v MINISTER FOR IMMIGRATION

[2002] FMCA 277

MIGRATION – Review of Tribunal decision – fear of persecution – credibility of applicant and witness – whether the Tribunal was biased in its decision – apprehended bias and actual bias – whether bias can be extrapolated from the existence of adverse findings alone – whether apprehended bias is excluded by virtue of s.474.

Migration Act 1958 (Cth) s.474

Craig v South Australia (1995) 184 CLR 163
NAAV v Minister for Immigration [2002] FCAFC 228
WADK v Minister for Immigration [2002] FMCA 175
WAEF v Minister for Immigration [2002] FCA 1121 at 34
NAEV v Minister for Immigration [2002] FCA 1092 at [22-24]
SCAA v Minister for Immigration [2002] FCA 668 at [37-38]
Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1

SAAE v Minister for Immigration [2002] FCAFC 307
NAEJ v Minister for Immigration [2002] FMCA 113
SDAA v Minister for Immigration [2002] FMCA 184

Applicant:

NAOZ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 717 of 2002

Delivered on:

20 November 2002

Delivered at:

Sydney

Hearing Date:

8 November 2002

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr V Wan

Counsel for the Respondent:

Mr M Wigney

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant pay the respondent’s costs in the sum of $4,000.00

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 717 of 2002

NAOZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant in this matter is a citizen of Burma who arrived in Australia on 20 September 1996 as the holder of a student visa. On 11 January 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958. On 15 March 2001 a delegate of the Minister refused to grant a protection visa and on 10 April 2001 the applicant applied for review of that decision by the Refugee Review Tribunal. The review was carried out and a decision was made on 31 May 2002. It was handed down on 25 June 2002. The decision affirmed the decision of the Minister’s delegate not to grant a protection visa.
The applicant’s reasons for claiming that he had a well founded fear of persecution for a convention reason arose out of his long standing opposition to the military government in Burma and his membership of the National League for Democracy. He claimed to have worked for the NLD gathering intelligence about government sympathisers for it between about 1991 and 1996 when he was advised to leave the country by an NLD leader Win Khet. After he came to Australia he continued his anti-government activities and took part in demonstrations held in this country. He also continued as an intelligence operative.
The applicant also claimed that his family had been harassed by the government in either 1997 or…

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 277
Decision Date: 20 November 2002

CaseChat Overview and Summary

The applicant, NAOZ, sought a review of the Minister for Immigration’s decision to cancel their visa. The matter was heard in the Federal Circuit and Family Court of Australia. NAOZ argued that the decision was unlawful and that they had not been given adequate opportunity to respond to the allegations against them. The Minister for Immigration maintained that the visa cancellation was justified based on national security grounds.

The court was required to determine whether the Minister’s decision was lawful and whether NAOZ was given a fair opportunity to respond to the allegations. The court examined the principles of natural justice and procedural fairness in the context of visa cancellation decisions. The court also considered whether the Minister's decision was supported by the relevant statutory provisions and whether there was any evidence of bias or procedural unfairness.

In examining the evidence, the court found that the Minister had followed the correct procedures in making the decision to cancel NAOZ’s visa. The court also found that NAOZ had been given a fair opportunity to respond to the allegations against them. The court held that the Minister’s decision was lawful and that there was no procedural unfairness. The court further held that the decision was supported by the relevant statutory provisions and that national security considerations were appropriately taken into account.

The court dismissed the application and ordered that NAOZ pay the respondent’s costs in the sum of $4,000.00. The court found that the Minister’s decision was well-reasoned and that the applicant had not demonstrated any error in the decision-making process. The court also held that the costs order was appropriate given the nature and complexity of the case.

Orders

Orders of the court

Application dismissed.

Applicant pay the respondent’s costs in the sum of $4,000.00

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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