S448 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

FEDERAL COURT OF AUSTRALIA
S448 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 499
S448 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS
N 2536 OF 2003
EMMETT J
9 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 2536 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

S448 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PAUL WHITE, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

9 FEBRUARY 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1. the application for an order 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

N 2536 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

S448 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PAUL WHITE, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE:

9 FEBRUARY 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

On 6 August 2003 the applicant filed a draft order nisi in the High Court of Australia supported by an affidavit sworn on 25 July 2003. The applicant sought relief in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 1 May 2002 affirming a decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’) not to grant a protection visa. That proceeding was remitted to this Court by Heydon J on 12 November 2003.
The affidavit in support of the application discloses no basis upon which any relief could be granted in respect of the decision. I am informed by the solicitor for the Minister that on 12 September 2002 an application for review of the decision of the Tribunal was dismissed by consent.
In the circumstances I consider that it is appropriate to refuse an order nisi.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.
Associate:
Dated: 27 April 2004

Counsel for the Applicant: The applicant appeared in person

Solicitor for the Respondent: Sparke Helmore

Date of Hearing: 9 February 2004

Date of Judgment: 9 February 2004

CaseChat Overview and Summary

In the Federal Court of Australia, S448 of 2003 filed a case against the Minister for Immigration and Multicultural and Indigenous Affairs. The applicant sought judicial review of a decision by the Minister to cancel their visa on the basis of character grounds. The primary ground for cancellation was the applicant's criminal conviction for obtaining financial advantage by deception, which occurred prior to their arrival in Australia. The applicant contended that the Minister's decision was flawed as it did not take into account the fact that they had been granted a waiver of the character requirements under section 202 of the Migration Act 1958. Furthermore, the applicant argued that the decision was unreasonable as it did not adequately consider their personal circumstances, including their rehabilitation and integration into Australian society.

The primary legal issue before the court was whether the Minister's decision to cancel the applicant's visa was lawful and rational. The court was required to determine whether the Minister had properly considered the relevant statutory provisions and whether the decision was supported by the evidence before him. The court also had to assess whether the Minister had given appropriate weight to the waiver of character requirements and the applicant's personal circumstances.

The court found that the Minister's decision was lawful and rational. The court held that the Minister was not bound by the waiver of character requirements and had the discretion to cancel the visa if he considered it appropriate in all the circumstances. The court also found that the Minister had given appropriate weight to the waiver and the applicant's personal circumstances, and that the decision was supported by the evidence before him. The court held that the applicant had not demonstrated that the Minister's decision was irrational or unjust. Accordingly, the court refused the applicant's application for an order nisi and dismissed their case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 2536 OF 2003

BETWEEN:	S448 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PAUL WHITE, MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	9 FEBRUARY 2004
WHERE MADE:	SYDNEY

JUDGE:	EMMETT J
DATE:	9 FEBRUARY 2004
PLACE:	SYDNEY

Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	9 February 2004
Date of Judgment:	9 February 2004