NAWW v Minister for Immigration - [2005] FMCA 1753

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAWW v MINISTER FOR IMMIGRATION

[2005] FMCA 1753

MIGRATION – Protection visa application – judicial review of the delegate’s decision – delegate’s decision previously affirmed by the Tribunal and its decision upheld in Federal Court and Federal Magistrates Court – discretionary reasons for refusing relief – application dismissed – directions that no further judicial review application be filed without leave of the Court.

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Migration Act 1958 (Cth), ss.66(2), 66(4), 91X, 414, 415, 476(1), 476(6), 500
Judiciary Act 1903 (Cth), s.39B

NAWW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 91
NAWW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 783
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 261
SZGKR & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1316
Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 1292
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
NAMG & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 221
SZCTH v Minister for Immigration & Multicultural & Indigenous Affairs (No. 1) [2003] FMCA 541

Applicant:

NAWW

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1789 of 2005

Delivered on:

30 November 2005

Delivered at:

Sydney

Hearing date:

15 November 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

The applicant appeared via telephone link with the assistance of an Urdu interpreter.

Advocate for the Respondent:

Ms L Gazi

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The respondent’s Notice of Motion filed on 12 September 2005 is upheld.
The application for judicial review filed on 8 July 2005 is dismissed.
The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal (of Mr Roger Gibson, File No: N02/44094) made on 1 September 2003 and handed down on 25 September 2003 or the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (of Mr John Maxwell-Owhochukwa) handed down on 6 August 2002 is to be accepted for filing without leave of this Court.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1789 of 2005

NAWW

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

By a Notice of Motion filed on 12 September 2005, the respondent moves the Court for orders that the proceedings be dismissed on the basis that:
a)the decision sought to be reviewed is not an operative decision affecting the rights of the applicant;
b)no reasonable cause of action is disclosed in relation to the proceedings (Rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth));
c)the proceeding is an abuse of process of the Court (Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth)).
These proceedings were commenced by an application under the

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: [2005] FMCA 1753
Decision Date: 30 November 2005

CaseChat Overview and Summary

The case of NAWW v Minister for Immigration involved the applicant, NAWW, who sought judicial review of decisions made by the Refugee Review Tribunal and a delegate of the Minister for Immigration. The decisions in question pertained to the applicant's claim for refugee status, which was ultimately denied. The applicant contested these decisions and filed an application for judicial review on 8 July 2005. The Minister for Immigration responded by filing a Notice of Motion on 12 September 2005, seeking to uphold the original decisions and dismiss the application for review.

The court was required to address several legal issues, including the validity of the procedural fairness afforded to the applicant during the decision-making processes, the correctness of the factual findings made by the Refugee Review Tribunal and the delegate, and the applicability of the relevant legislative provisions. Specifically, the court needed to determine whether the applicant's rights were breached during the review process and whether the decisions were legally sound based on the evidence and applicable law.

In its reasoning, the court found that the procedural fairness requirements were adequately met in both the Tribunal and delegate decision-making processes. The court concluded that the factual findings made by the Tribunal and the delegate were not erroneous and were supported by the evidence presented. The court further determined that the legislative provisions were correctly applied and that the decisions were legally sound. As a result, the court dismissed the application for judicial review and upheld the Minister's Notice of Motion. Additionally, the court directed that no further applications by the applicant to review the same decisions would be accepted without leave of the Court and ordered the applicant to pay the respondent's costs and disbursements.

Orders

Orders of the court

The respondent’s Notice of Motion filed on 12 September 2005 is upheld.

The application for judicial review filed on 8 July 2005 is dismissed.

The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal (of Mr Roger Gibson, File No: N02/44094) made on 1 September 2003 and handed down on 25 September 2003 or the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (of Mr John Maxwell-Owhochukwa) handed down on 6 August 2002 is to be accepted for filing without leave of this Court.

The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

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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