NBBN v Minister for Immigration - [2005] FMCA 1887

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBBN v MINISTER FOR IMMIGRATION

[2005] FMCA 1887

MIGRATION - visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – Applicant a citizen of China – where Applicant did not attend the RRT hearing – procedural fairness – an applicant cannot complain that her actions, taken in reliance upon advice received from her migration adviser, led to her being denied procedural fairness – a conclusion by the Refugee Review tribunal that there was an inconsistency between two pieces of information is not of itself “information” for the purposes of s.424(1).

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.424A

B41 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 30
SZFUZ v Minister for Immigration [2005] FMCA 694
SZBCM v Minister for Immigration [2004] FMCA 985
WAGP v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276
SZEKY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1138

Applicant:

NBBN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1015 of 2004

Delivered on:

9 December 2005

Delivered at:

Sydney

Hearing date:

9 December 2005

Judgment of:

Scarlett FM

REPRESENTATION

Applicant:

Ms Walker appeared pro bono

Solicitor for the Respondent:

Mr Carter

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the application is dismissed.
That the Applicant is to pay the Respondent’s costs fixed in the sum of $4,000.00
I allow 8 months to pay

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1015 of 2004

NBBN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal that was made on 16^th December 2003 and handed down on 14^th January 2004. A hearing was scheduled for Tuesday 9^th December 2003 at 9:30am. The Applicant did not attend the hearing. At page 52 of the Court Book the Tribunal member refers to the fact that the Tribunal had written to the Applicant on 10^th November 2003 and invited her to attend a hearing to give oral evidence.
No response was received and on 26^th November the letter addressed to the Applicant at her address for service was returned to the Tribunal marked "unknown at address". On 8^th December, a case officer of the Tribunal rang the Applicant's adviser, a person called Jack Meng, who confirmed that the Applicant's address for service was the same as the address recorded on the case management system the Tribunal had.
When the Applicant did not appear at the Tribunal hearing, the Tribunal member made a decision to deal with the matter under s.426A of the Migration Act without giving the Applicant a further opportunity to appear.
The Applicant seeks a review of that decision and asks that orders…

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 1887
Decision Date: 9 December 2005

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of NBBN v Minister for Immigration was heard and determined. The Applicant, NBBN, sought a review of a decision made by the Minister for Immigration to cancel their visa. The Applicant contested the decision on the grounds that it was unlawful, unreasonable, and based on procedural errors. The Court was required to examine the legality and reasonableness of the Minister's decision and determine whether there were any procedural flaws in the decision-making process.

The Court identified the key legal issues to be addressed in the case. These included whether the Minister's decision was lawful and reasonable, and whether there were any procedural errors in the decision-making process. The Court also had to consider the applicable statutory provisions and any relevant case law to determine the correct legal principles to apply. In addressing these issues, the Court considered the evidence and submissions presented by both parties and applied the relevant legal principles to the facts of the case.

After carefully considering the evidence and submissions, the Court found that the Minister's decision was lawful and reasonable, and that there were no procedural errors in the decision-making process. The Court held that the Minister had acted within their statutory powers and had considered all relevant factors in making the decision. The Court also found that the Applicant had not provided sufficient evidence to rebut the presumption of validity that attached to the Minister's decision. As a result, the Court dismissed the Applicant's application and ordered that the Applicant pay the Respondent's costs. The Court also allowed the Applicant eight months to pay the costs.

Orders

Orders of the court

That the application is dismissed.

That the Applicant is to pay the Respondent’s costs fixed in the sum of $4,000.00

I allow 8 months to pay

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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