Nation v Minister for Immigration - [2005] FMCA 620

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NATION v MINISTER FOR IMMIGRATION

[2005] FMCA 620

MIGRATION – Tourism visa cancelled by Minister’s delegate – application made to Court and not to Migration Review Tribunal – discretion to decline to exercise jurisdiction where statutory scheme for review ignored – notice of cancellation and alleged inadequacy of grounds – alleged bad faith of delegate.

Judiciary Act 1903, s.39B
Migration Act 1958, ss.41(1), 116, 116(1)(g), 119, 120, 192, 338, 338(3), 347, 349(1), 349(2), 353, 476, 476(1)

Plaintiff S157/2002 v the Commonwealth [2003] 211 CLR 476;
McGowan v Migration Agents [2003] 129 FCR 118
Krummery v MIMIA [2005] FMCA 264
Wang v MIMIA [2000] FC 167
Zubair v MIMIA [2004] FCA FC 248
William Tien v MIMIA (1998) 89 FCR 80
MIMIA v Eshetu (1999) 197 CLR 611
S106/2002 v MIMIA 198 ALR 59
Re Family Court of Australia; ex parte Herbert (1992) FLC 92-280
Dranichnikov v MIMIA [2003] HCA 26
Tooth & Co Ltd v Council of City of Parramatta (1995) 97 CLR 492
Re Minister for Immigration and Multicultural Affairs (2001) 206 CLR 57
R v Falmouth ex parte South West Water Ltd
SBBS v MIMIA [2002] FCA FC 36
Goldie v The Commonwealth [2002] FCA FC 100

Applicant:

JONATHAN PAUL NATION

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

ADG 21 of 2005

Judgment of:

Lindsay FM

Hearing date:

12 April 2005

Delivered at:

Adelaide

Delivered on:

13 May 2005

REPRESENTATION

Counsel for the Applicant:

Mr Patel

Solicitors for the Applicant:

Patel & Co

Counsel for the Respondent:

Mr Roder

Solicitors for the Respondent:

Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 21 of 2005

JONATHAN PAUL NATION

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903, seeking judicial review of a decision of a delegate of the Minister made on 4 February 2005. That decision cancelled the applicant's subclass 976 visa.
The applicant has not sought relief in the Migration Review Tribunal under Part 5 of the Migration Act (hereinafter "the Review procedure"). There was no dispute that the delegate's decision was reviewable by the Tribunal (see s.338 of the Migration Act 1958, hereinafter called "the Act"). It is also agreed that the time for filing such a review has now expired (see s.347 of the Act) and that no power to extend that time is available.
The jurisdiction of this Court pursuant to s.483A of the Act is the same jurisdiction of the Federal Court in relation to a matter arising under this Act, that jurisdiction relevantly being the Federal Court's judicial review jurisdiction under s.39B of the Judiciary Act1903 (Cth) subject to limitations under Part 8 of the Migration Act.
Mr Patel for the applicant put to me, and I accept, that those limitations, as interpreted by the High Court in Plaintiff S157/2002 v the Commonwealth [2003] 211…

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.

Keep reading for free

Create a free CaseChat account to read Nation v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] FMCA 620
Decision Date: 13 May 2005

CaseChat Overview and Summary

The Federal Magistrates Court of Australia heard an application for judicial review of a decision by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to cancel the subclass 976 visa of the applicant, Jonathan Paul Nation. The primary issue before the Court was whether the application should be heard at all, considering that the applicant did not seek relief through the Migration Review Tribunal (MRT), a statutory mechanism for review that was available to him. The Court considered whether the discretion to decline to exercise jurisdiction where a statutory review mechanism exists should be exercised at the outset or as a residual matter. The Court found that the discretion could be exercised at the outset but decided to hear the application in its entirety before ruling on the threshold point. The applicant argued that the notice of cancellation provided by the delegate was defective, but the Court found that the delegate complied with the statutory requirements. The applicant also contended that the delegate relied on facts that did not exist or were not supported by probative material, but the Court found that the delegate's reliance on the material was not irrational. The Court also considered whether the availability of the statutory review procedure through the MRT should be a ground for refusing to exercise jurisdiction. The Court found that the applicant's decision to bring the application directly to the Court rather than through the MRT constituted a circumvention of the statutory scheme for review and was not justified by the difference in filing fees. The Court dismissed the application for judicial review.

The final orders of the Court were as follows:

1. The application for judicial review is dismissed.
2. The respondent is to pay the applicant's costs of the application, to be taxed if not agreed.

Orders