Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 3) - [2004] FCA 750

FEDERAL COURT OF AUSTRALIA
Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs (No 3)
[2004] FCA 750
MIGRATION – judicial review – cancellation of visa – character test – substantial criminal record – failure to consider whether visa holder failed to satisfy Minister that he passed character test – jurisdictional error – no statement of reasons – issues document – evidence of course of reasoning – finding of failure to pass character test – no consideration in that finding of visa holder’s evidence – reference to discretionary factors – reference to visa holder’s evidence without analysis – limited evidence based upon letter that visa holder convicted of murder at age 15 in Yugoslavia – conflicting evidence from visa holder – conflicting official records – evidence that conviction expunged – relevance of evidence acquired after decision and after proceedings commenced relevance to jurisdictional error at time of decisions – relevance to discretion to grant relief – application allowed
Migration Act 1958 (Cth) s 501(2), s 501(6), s 501(7), s 501(10), s 501(12)
Judiciary Act 1903 (Cth) s 39B
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 applied
Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 200 ALR 359 cited
RIFAT NEZOVIC AND ANOTHER v THE MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
W47 OF 2003
FRENCH J
11 JUNE 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W47 OF 2003

BETWEEN:

RIFAT NEZOVIC
FIRST APPLICANT

SEIDA NEZOVIC
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

FRENCH J

DATE OF ORDER:

11 JUNE 2004

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.There be an order in the nature of certiorari quashing the respondent’s decision to cancel the first applicant’s visa.
2.There be an order in the nature of mandamus requiring the respondent to reconsider the cancellation of the first applicant’s visa according to law.
3.The respondent is to pay the applicants’ costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W47 OF 2003

BETWEEN:

RIFAT NEZOVIC
FIRST APPLICANT

SEIDA NEZOVIC
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

FRENCH J

DATE:

11 JUNE 2004

PLACE:

PERTH

REASONS FOR JUDGMENT
Introduction

On 17 January 2003, the Minister for Immigration and Multicultural and Indigenous Affairs cancelled the visa of Rifat Nezovic who had come to Australia with his wife Seida, to live in 1994. The cancellation was based upon a finding by the Minister that Mr Nezovic had been convicted of murder at the age of 15 while still in the former Yugoslavia and had been sentenced to imprisonment for between one and five years. He was, on that basis, found to have a substantial criminal record and to have failed to pass the character test prescribed in s 501 of the Migration Act…

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

AGLC: Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 3) [2004] FCA 750
Case: [2004] FCA 750
Decision Date: 11 JUNE 2004

CaseChat Overview and Summary

The case of Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 3) involved a challenge by Mr Nezovic against the decision of the Minister for Immigration and Multicultural and Indigenous Affairs to cancel his visa on the basis that he had failed the character test. Mr Nezovic contended that there were errors in the Minister's decision-making process and that he had not been given a fair opportunity to respond to the allegations against him. The matter was heard by the Federal Court of Australia.

The primary legal issues before the court were whether there had been a jurisdictional error in the Minister’s decision-making process, and whether Mr Nezovic had been given a fair opportunity to respond to the allegations against him. The court also considered whether the sentence imposed on Mr Nezovic in Yugoslavia could be considered punitive under Australian law and whether his conviction had been expunged. The court needed to determine whether the Minister had properly considered the available materials before reaching a decision.

The court found that the Minister’s decision to cancel Mr Nezovic's visa was flawed because it did not properly consider the materials before it. The court held that the sentence imposed on Mr Nezovic in Yugoslavia was not punitive and that his conviction may have been expunged. The court also found that Mr Nezovic had not been given a fair opportunity to respond to the allegations against him. The court concluded that there had been a jurisdictional error in the Minister’s decision-making process and that the decision should be set aside. The court also ordered the Minister to reconsider the cancellation of Mr Nezovic's visa according to law.

The court made an order in the nature of certiorari setting aside the Minister’s decision to cancel Mr Nezovic's visa, and an order in the nature of mandamus requiring the Minister to reconsider the cancellation of his visa according to law. The Minister was also ordered to pay Mr Nezovic's costs of the application.

Orders

Orders of the court

1. There be an order in the nature of certiorari quashing the respondent’s decision to cancel the first applicant’s visa.

2. There be an order in the nature of mandamus requiring the respondent to reconsider the cancellation of the first applicant’s visa according to law.

3. The respondent is to pay the applicants’ costs of the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH J

Counsel for the Minister submitted that on this material the Court could conclude that there had been no jurisdictional error as it demonstrated that Mr Nezovic’s claim that it was his father and not he who had been convicted of murder was false. Accepting that as a proposition does not, however, dispose of the question whether Mr Nezovic could have satisfied the Minister that he did not fail the character test had that matter been considered properly or at all on the materials now available. For it is the sentence, rather than the conviction, that is critical to the question whether a person has a ‘substantial criminal record’ within the meaning of s 501(7). I express no concluded view as the matter has not been argued, but the sentence contemplated by s 501(7) is arguably a punitive determination. The record of Mr Nezovic’s case raises the question whether the disposition by the court in Yugoslavia was punitive. The contrast between the ‘sentence’ imposed upon his father and the referral to an ‘educative-corrective home’ imposed upon Mr Nezovic is striking. This consideration also goes to the question of the discretion to grant relief and its utility. I also have regard to the reference in the fax from the Australian Embassy quoted in the Issues Document which suggested that Mr Nezovic’s conviction may have been expunged. This would require consideration of the application of s 501(10). The net effect of these matters is that reconsideration by the Minister could well yield a different outcome even assuming the availability of the materials which have now been put before the Court. In my opinion the relief sought should be granted. Conclusion For the preceding reasons, I propose to make an order in the nature of certiorari setting aside the Minister’s decision. There will also be an order in the nature of mandamus that the Minister reconsider the cancellation according to law. The Minister pay the Nezovics’ costs of the application.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W47 OF 2003

BETWEEN:	RIFAT NEZOVIC FIRST APPLICANT SEIDA NEZOVIC SECOND APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	11 JUNE 2004
WHERE MADE:	PERTH

JUDGE:	FRENCH J
DATE:	11 JUNE 2004
PLACE:	PERTH