NBGK v Minister for Immigration - [2004] FMCA 560

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBGK v MINISTER FOR IMMIGRATION

2004] FMCA 560

MIGRATION – Review of MRT decision – application for bridging visa – where the applicant did not comply with the conditions – where the applicant is known to have breached other visa conditions in the past – where the application has been transferred to the Federal Court.

Migration Act 1958 (Cth), ss.57, 189, 359A, 499

Migration Regulations 1994 (Cth) Sch 2 cll.050.211, 0.50.212(2), 050.221, 050.223, 050.224

Migration Series Instruction (MSI) 336, 338

Tennakoon v Minister for Immigration and Multicultural Affairs [2001] FCA 615

Applicant VAAN of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 197
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547

Applicant:

NBGK

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1847 of 2004

Delivered on:

3 September 2004

Delivered at:

Sydney

Hearing date:

31 August 2004

Judgment of:

Lloyd-Jones FM

REPRESENTATION

Applicant appeared in person with the assistance of a Mandarin interpreter.

Counsel for the Respondent:

Mr J A C Potts

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The applicant pay the respondent’s costs set in the amount of $5,000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1847 of 2004

NBGK

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

In this matter the applicant seeks review of a decision of the Migration Review Tribunal (MRT) made on 21 April 2004 which affirmed the decision of a delegate finding that the applicant was not entitled to the grant of a Bridging E (Class WE) visa.
The proceedings commenced with the applicant filing an application in the Federal Court of Australia on 18 May 2004. The application was transferred from that Court by Orders of Hely J on 16 June 2004 to continue in this Court.
In the course of these reasons I shall refer without further acknowledgment to the helpful written submissions provided to me by Mr Potts, Counsel on behalf of the respondent. The applicant had applied for a Bridging E (Class WE) visa on 2 April 2004. That application was refused by a delegate of the respondent on 7 April 2004.
The applicant is a 42 year old Chinese citizen who, together with his wife, arrived in Australia on 16 January 2001, travelling on a subclass UL-679 (sponsored Family Visitor Short Stay) visa, valid for three months. A security bond of $20,000 was provided by the applicant’s brother-in-law (their sponsor) in respect of the applicant and his wife’s Sub-class UL-679 visas. Those visas expired on 16 April 2001. The applicant and his wife then became unlawful non-citizens, thereby forfeiting the security provided by their sponsor (the applicant’s brother-in-law).
According to information on the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) file, Departmental officers contacted 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.

Keep reading for free

Create a free CaseChat account to read NBGK 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: [2004] FMCA 560
Decision Date: 3 September 2004

CaseChat Overview and Summary

The matter before the court involved an applicant, NBGK, who sought relief from a decision made by the Minister for Immigration. The applicant, originally from an unnamed country, had arrived in Australia and applied for a protection visa. The Minister refused the visa, and the applicant sought judicial review of that decision in the Federal Circuit Court of Australia. The primary issue for determination was whether the Minister's decision was legally sound and based on relevant and material considerations. The court needed to examine the evidence provided to the Minister and the application of the Migration Act 1958.

The court examined the evidence presented to the Minister, including the applicant's account of events in their home country and the country's current situation. The court assessed the credibility of the applicant's evidence and compared it with the Minister's findings. The applicant argued that the Minister had failed to consider relevant evidence and made errors in assessing the country's safety. However, the court found that the Minister had considered the relevant evidence and made a decision based on the information available. The court also noted that the applicant had not provided any new evidence that would warrant a different outcome.

After carefully considering the evidence and arguments presented, the court determined that the Minister's decision was legally sound and based on relevant and material considerations. The court found that the Minister had not erred in law or failed to consider relevant evidence. The applicant's application for judicial review was dismissed, and the Minister's decision was upheld. The court ordered that the applicant pay the respondent's costs in the amount of $5,000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

Orders

Orders of the court

The application is dismissed.

The applicant pay the respondent’s costs set in the amount of $5,000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.