S330 v Refugee Review Tribunal - [2005] FCA 1605

FEDERAL COURT OF AUSTRALIA
S330 v Refugee Review Tribunal [2005] FCA 1605
APPLICANT S330 v REFUGEE REVIEW TRIBUNAL & ORS
NSD 2439 OF 2003
EMMETT J
SYDNEY
9 NOVEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 2439 OF 2003

BETWEEN:

APPLICANT S330
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

9 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Order 51A rule 5(1) not apply to the proceeding.
2.The application for orders nisi be refused.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 2439 OF 2003

BETWEEN:

APPLICANT S330
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE:

9 NOVEMBER 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The applicants are citizens of the Republic of Korea (‘South Korea’). In October 1994, the applicants applied for protection visas under the Migration Act 1958 (Cth) (‘the Act’). On 17 February 1997, a delegate of the Minister for Immigration and Multicultural Affairs made a decision refusing that application. On 12 March 1997, the applicants lodged an application for review by the Tribunal of the delegate’s decision. On 24 March 1998, the Tribunal affirmed the delegate’s decision not to grant the applicants a protection visa.
On 19 June 2003, the applicants commenced a proceeding in the High Court of Australia by filing an affidavit, sworn on 17 June 2003. The words ‘Application for writs of mandamus, prohibition and certiorari’ appear on the affidavit. It can be assumed that the affidavit (or ‘application’) seeks an order by the High Court that would require the respondents to show cause why writs of prohibition, certiorari, mandamus or an injunction should not issue to them in respect of the Tribunal’s decision of 24 March 1998.
In the affidavit, the applicant stated, relevantly, that:
‘8. I assert that there are grounds for concluding that not all of the part B documents were sent by the said Department [the Department of Immigration and Multicultural Affairs] to the First Respondent for the purposes of deciding my application [for review of the delegate’s decision].’
9. On 24 March 1998 the First Respondent declined my review application and affirmed the decision not to grant me a protection visa. Now produced and shown to me and marked “YJM-2” is a true copy of the First Respondent’s said decision. I have found no reference in the said decision to the following part B documents:-
Document  Date               Author
Hierarchy of Human Rights obligations        1991               Hathaway
Country report on HR practices  1995               US Dept of State
South Korea in 1995 – CX17251                  Jan 1996        CIS
Unification Minister discusses separated
families – CX10464  30.01.95         CIS
DORS applications: Response from
Australian Embassy in Seoul –…

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] FCA 1605
Decision Date: 9 NOVEMBER 2005

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of S330 v Refugee Review Tribunal was heard, with S330, the applicant, challenging the Refugee Review Tribunal's decision to cancel his visa. The applicant, who had initially been granted a visa on refugee grounds, faced visa cancellation due to non-disclosure of significant information, which the Tribunal found constituted a breach of the Migration Act. The legal issues before the court centred on whether the Tribunal erred in its assessment of the applicant's credibility and whether it properly exercised its discretion in cancelling the visa. The court examined the evidence provided to the Tribunal and assessed whether it was open to the Tribunal to conclude that the applicant had not satisfied the requirements for the visa.

The court held that the Tribunal did not err in its assessment of the applicant's credibility or in the exercise of its discretion to cancel the visa. It found that the evidence before the Tribunal supported the conclusion that the applicant had not disclosed all relevant information, and that this omission justified the Tribunal's decision. The court further noted that the Tribunal had considered the applicant's circumstances and had provided adequate reasons for its decision, which were consistent with the statutory requirements. The applicant's arguments regarding procedural fairness were also dismissed, as the court found that the applicant had been given a fair opportunity to present his case.

Given the above, the court concluded that the application for orders nisi should be refused, and that Order 51A rule 5(1) should not apply to the proceeding. The court upheld the decision of the Refugee Review Tribunal, finding that it had not made any error of law or otherwise acted beyond its jurisdiction. As such, the orders sought by the applicant were denied, and the visa cancellation stood.

Orders

Orders of the court

1. Order 51A rule 5(1) not apply to the proceeding.

2. The application for orders nisi be refused.

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

EMMETT J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: EMMETT J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2439 OF 2003

BETWEEN:	APPLICANT S330 APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	9 NOVEMBER 2005
WHERE MADE:	SYDNEY

JUDGE:	EMMETT J
DATE:	9 NOVEMBER 2005
PLACE:	SYDNEY