Nystrom v Minister for Immigration - [2005] FMCA 305

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NYSTROM v MINISTER FOR IMMIGRATION

[2005] FMCA 305

MIGRATION – Application for judicial review of decision by Minister to cancel visa under s.501(2) Migration Act 1958 (Cth) – whether applicant ceased to be an immigrant by reason of a grant of a Transitional (Permanent) visa – whether applicant ceased to be an immigrant by reason of a grant of an absorbed person visa – operation of law – character test – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.34, 82(2), 475A, 501, 501F
Judiciary Act 1903 (Cth), s.39B
Migration Legislation Amendment Act 1994 (Cth)
Migration Reform (Transitional Provisions) Regulations 1994 (Cth), reg 4(1), 3

Second Reading Speech, Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998, Vol H of R 223, (1998), 1229ff.

Eatts v Dawson (1990) 21 FCR 166
Kaushal Sharma v Minister for Immigration and Multicultural and Indigenous Affairs [1997] 1050 FCA
Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 389
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
Johnson v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 137

Applicant:

STEFAN NYSTROM

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MLG 1604 of 2004

Delivered on:

16 March 2005

Delivered at:

Melbourne

Hearing Dates:

23 February & 10 March 2005

Judgment of:

Hartnett FM

REPRESENTATION

Counsel for the Applicant:

Ms de Ferrari

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondent:

Dr S. Donaghue

Solicitors for the Respondent:

Australian Government Solicitor

ORDER

The application is dismissed.
The applicant to pay the costs of the respondent as agreed or failing agreement upon determination made upon application to the chambers of Federal Magistrate Hartnett.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001 the Court certifies that it was reasonable for the parties to employ an advocate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1604 of 2004

STEFAN NYSTROM

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision made by the respondent on 12 August 2004 to cancel the applicant's visa pursuant to section 501 of the Migration Act 1958 (Cth) (the Act).
The application was filed 8 December 2004 and made under section 39B of the Judiciary Act 1903 and section 475A of the Act. That application was amended by the filing of an amended application on 4 February 2005. The grounds of the application are as set out in paragraph 1 wherein it is alleged that the respondent acted beyond the jurisdiction of the Act in cancelling the applicant's visa, the particulars of application being:
1)The Minister cancelled the wrong visa class of the applicant;
2)The applicant, by virtue of section 34 of the Migration Act 1958 was in possession of an alternate visa category that has not been considered or cancelled by the Minister;
3)The decision involved an error of…

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 305
Decision Date: 16 March 2005

CaseChat Overview and Summary

The case of Nystrom v Minister for Immigration & Multicultural & Indigenous Affairs involved an application for judicial review of a decision by the Minister to cancel the applicant's visa under section 501(2) of the Migration Act 1958. The applicant, Stefan Nystrom, challenged the decision on the basis that the Minister had cancelled the wrong visa class, failed to consider an alternate visa category, and made errors of law and unreasonable decisions. The court considered whether the applicant had ceased to be an immigrant by reason of a grant of a Transitional (Permanent) visa or an absorbed person visa.

The primary legal issue before the court was whether the Minister had jurisdiction to cancel the visa and if the decision was legally sound. The court examined the relevant provisions of the Migration Act and the effect of the Migration Reform (Transitional Provisions) Regulations 1994. The court also assessed whether the Minister had taken relevant considerations into account when cancelling the visa.

Federal Magistrate Hartnett found that the Minister had correctly identified and cancelled the relevant visa, a Transitional (Permanent) visa, which was granted to the applicant by operation of law. The court held that even if the applicant had been granted an absorbed person visa, the Minister was not required to separately consider that visa as section 501F(3) of the Act operated on it as a matter of law. The court concluded that the Minister had taken all relevant considerations into account and reached a decision that was open to her. The court found no jurisdictional error or unreasonableness in the Minister's decision.

The application for judicial review was dismissed, and the applicant was ordered to pay the costs of the respondent as agreed or failing agreement upon determination made upon application to the chambers of Federal Magistrate Hartnett. The court certified that it was reasonable for the parties to employ an advocate.

Orders