NAQS v Minister for Immigration - [2002] FMCA 301

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAQS v MINISTER FOR IMMIGRATION

[2002] FMCA 301

MIGRATION – Protection visa application – conversion to Christianity sur place – Tribunal not satisfied under s.91R(3) – attempt to substitute Court’s reasoning for that of the Tribunal – no lack of bona fides found in decision.

Migration Act 1958 (Cth), ss.91R(3), 420(2)(b)

NAAH v Minister for Immigration [2002] FCAFC 354
WAAK v Minister for Immigration [2002] FMCA 86
NAAV v Minister for Immigration [2002] FCAFC 228

Applicant:

NAQS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 633 of 2002

Delivered on:

19 November 2002

Delivered at:

Sydney

Hearing Date:

19 November 2002

Judgment of:

Raphael FM

REPRESENTATION

Solicitors for the Applicant:

Michael Jones

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs in the sum of $4,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 633 of 2002

NAQS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant in this matter is an Iranian citizen who, together with her two children, arrived in Australia on 6 February 2001. On 28 February 2001 an application for a protection (class XA) visa was lodged with the Department of Immigration & Multicultural Affairs under the Migration Act 1958 on behalf of all three. On 13 August 2001 a delegate of the Minister refused to grant protection visas and on 18 September 2001 the applicant applied for a review of that decision.
The review was carried out on 12 February 2002 after an adjournment at the request of the applicant. The Tribunal made its decision on 18 June 2002 and published that decision on 10 July 2002. It is against that decision that the applicant seeks a review from this court.
The applicant's claims for review are within a short compass. As deposed to in the affidavit supporting the application, they are:
“(a) The Tribunal discounted the applicant's claim about having converted to Christianity for the reason that it had found other claims made by the applicant to be without foundation. The Tribunal's reasoning was illogical to the extent that it failed to give proper consideration to the claim that the applicant was a person to whom Australia had protection obligations.
(b)There was no evidence before the Tribunal on which it could have come to the conclusion that the applicant's conversion to Christianity was conduct within the meaning of section 91R(3) of the Migration Act 1958.”
These two grounds are connected. The factual matrix in which they occur is that on the day of the hearing before the Tribunal the applicant produced a letter from the Iranian Evangelical Church which certified that the writer, Pastor Addison Sarkisian, had known the applicant and her two sons for over two months and then went on to say:
"This family shows a very keen and genuine interest in Christianity. The applicant regularly attends our Sunday services, bible studies…

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 NAQS v Minister for Immigration

Details

AGLC: NAQS v Minister for Immigration [2002] FMCA 301
Case: [2002] FMCA 301
Decision Date: 19 November 2002

CaseChat Overview and Summary

The case of NAQS v Minister for Immigration was brought before the Federal Court. The applicant, NAQS, sought judicial review of a decision made by the Minister for Immigration, who refused to grant NAQS a visa. The applicant argued that the Minister's decision was flawed due to procedural errors and a failure to consider relevant information. The Minister maintained that the decision was made in accordance with the relevant legislative and policy frameworks.

The primary legal issues that the court had to address were whether the Minister had complied with the relevant procedural requirements and whether the decision was based on a consideration of all relevant material. The court had to examine whether the Minister had acted within the scope of the powers conferred by the relevant legislation and whether the decision-making process was fair and just.

The court found that the Minister had followed the necessary procedures and had properly considered all relevant information in making the decision. The court held that the Minister's decision was not flawed and did not constitute an error of law. The court also found that the applicant had not demonstrated that the decision had been made on an improper basis or that there had been a failure to consider relevant material. Consequently, the court dismissed the application and ordered the applicant to pay the respondent's costs in the sum of $4,400.00.

Orders

Orders of the court

Application dismissed.

Applicant to pay the respondent’s costs in the sum of $4,400.00.

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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