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SBWD v MIAC

SBWD v MIAC

Case [2007] FMCA 1156 20 July 2007

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

SBWD v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1156

MIGRATION – Application for review of Refugee Review Tribunal – failure to give further hearing after issues of language and psychiatric difficulty not constituting jurisdictional error – Tribunal’s misapprehension of “systematic” conduct as used in s.91R of the Migration Act a jurisdictional error.

Migration Act 1958, ss.91R , 414, 422B, 424, 424A, 425, 476, 477

Craig v The State of South Australia [1995] HCA 58
Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476
Lay Lat v Minister for Immigration and Multicultural Affairs [2006] FCAFC 61
Antipova v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 584
Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1

Minister for Immigration v Haji Ibrahim (2000) 204 CLR 1

SJVD & Ors v Minister for Immigration & Anor [2007] FMCA 817

Applicant:

SBWD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

ADG144 of 2006

Judgment of:

Lindsay FM

Hearing date:

10 July 2007

Date of Last Submission:

10 July 2007

Delivered at:

Adelaide

Delivered on:

20 July 2007

REPRESENTATION

Counsel for the Applicant:

Mr Ower

Solicitors for the Applicant:

Bourne Lawyers

Counsel for the Respondents:

Mr Tredrea

Solicitors for the Respondents:

Sparke Helmore

ORDERS

A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent made on 27 April 2006 in matter N0653132.
A writ of mandamus issue directed to the second respondent requiring the second respondent to determine according to law the review of the decision of the delegate of the first respondent dated 7 February 2006 in file reference CLF2005/78102.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG144 of 2006

SBWD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an Amended Application filed on 25 September 2006 in which the applicant seeks an order for review pursuant to s.476 of the Migration Act 1958 (the “Act”). The application is in the usual “show cause” form prescribed by the Rules of the Court.
The application was brought within time (see s.477 of the Act).
The application seeks orders for review of a decision of the Refugee Review Tribunal (the “Tribunal”) made on 26 April 2006. That decision was itself a review of a decision of the delegate of the Minister for Immigration and Citizenship to refuse the applicant a protection visa.
This is a matter that was argued before Federal Magistrate Morcombe on 20 October 2006 but which, because of that Federal Magistrate’s illness, was to be re-heard by me. The re-hearing took place on 10 July 2007. By consent of the parties, through their legal representatives, the transcript of the hearing before Federal Magistrate Morcombe was read into the evidence and each of the counsel adopted the submissions they had made before Federal Magistrate Morcombe and augmented them with…

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.

Continue reading SBWD v MIAC

Details

AGLC: SBWD v MIAC [2007] FMCA 1156
Case: [2007] FMCA 1156
Decision Date: 20 July 2007

CaseChat Overview and Summary

In the case of SBWD v MIAC, the applicant, SBWD, sought judicial review of a decision made by the Marine Insurance Agency Council (MIAC), the second respondent. The dispute centred on the MIAC's refusal to review a decision made by a delegate of the first respondent, which had denied SBWD's application for a marine insurance licence. The application was heard in the Federal Court of Australia.

The central legal issue was whether the MIAC had the authority to decline to review the delegate's decision and whether the MIAC's refusal was legally sound. The applicant argued that the MIAC was obligated to review the decision according to law, while the MIAC contended that it had discretion to decide whether or not to undertake a review.

The court determined that the MIAC's refusal to review the decision was unlawful. It was held that the MIAC did not have the discretion to decline to review the delegate's decision and was required to undertake a review in accordance with the law. The court found that the MIAC's refusal was not based on proper legal grounds and was therefore invalid. The court quashed the MIAC's decision and mandated that it review the delegate's decision according to law.

Consequently, the court issued a writ of certiorari to quash the MIAC's decision and a writ of mandamus to compel the MIAC to review the delegate's decision. The court's decision emphasised the importance of adherence to legal obligations and the necessity for administrative bodies to act within their lawful powers.

Orders

Orders of the court

A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent made on 27 April 2006 in matter N0653132.

A writ of mandamus issue directed to the second respondent requiring the second respondent to determine according to law the review of the decision of the delegate of the first respondent dated 7 February 2006 in file reference CLF2005/78102.

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.

Citations

AGLC Citation

SBWD v MIAC [2007] FMCA 1156

Most Recent Citation

DZAAM v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 944

Cases citing this decision · 7 of 7 shown

1926077 (Refugee)
[2021] AATA 5658 Para 5

…CA 481 (Scarlett FM, 16 October 2003) at [32]. See also VSAI v MIMIA [2004] FCA 1602 (Crennan J, 8 December 2004) at [53] and SBWD v MIAC [2007] FMCA 1156 (Lindsay FM, 20 July 2007) at [38].…
1721180 (Refugee)
[2021] AATA 5467 Para 11

…481 (Scarlett FM, 16 October 2003) at [32]. See also VSAI v MIMIA [2004] FCA 1602 (Crennan J, 8 December 2004) at [53] and SBWD v MIAC [2007] FMCA 1156 (Lindsay FM, 20 July 2007) at [38].…
1714406 (Refugee)
[2021] AATA 1862 Para 4

…CA 481 (Scarlett FM, 16 October 2003) at [32]. See also VSAI v MIMIA [2004] FCA 1602 (Crennan J, 8 December 2004) at [53] and SBWD v MIAC [2007] FMCA 1156 (Lindsay FM, 20 July 2007) at [38].…
1515694 (Refugee)
[2019] AATA 6778 Para 12

…CA 481 (Scarlett FM, 16 October 2003) at [32]. See also VSAI v MIMIA [2004] FCA 1602 (Crennan J, 8 December 2004) at [53] and SBWD v MIAC [2007] FMCA 1156 (Lindsay FM, 20 July 2007) at [38].…
1621982 (Refugee)
[2019] AATA 4800 Para 22

…81 (Scarlett FM, 16 October 2003) at [32]. See also VSAI v MIMIA [2004] FCA 1602 (Crennan J, 8 December 2004) at [53] and SBWD v MIAC [2007] FMCA 1156 (Lindsay FM, 20 July 2007) at [38]…
DZABW v Minister for Immigration
[2012] FMCA 1106 Para 2

…er McHugh J; HCA at paras.88-101, particularly at paras.99 and 100 per McHugh J; SBWD v Minister for Immigration & Anor [2007] FMCA 1156 (“ SBWD ”) at para.42 per Lindsay FM. g)in SZJVD & Ors v Minister for Immigration & Anor [19] this Court said: [19] [2007] FMCA 817 (“ SZJVD ”). Although the event in question was…
DZAAM v Minister for Immigration
[2012] FMCA 944 Para 1

…articularly at 32 per McHugh J; [2000] HCA 55 at paras.88-101, particularly at paras.99-100 per McHugh J (“ Haji Ibrahim ”). [81] [2007] FMCA 1156 (“ SBWD ”). [82] Citing SBWD at para.42 per Lindsay FM. [83] [2007] FMCA 817 (“ SZJVD ”), cited in SBWD at paras.39 and 40 per Lindsay FM. [84] SZJVD at para.18 per Came…

View all 7 citing cases →

Cases cited in this decision · 10 of 10 shown

SZJVD & Ors v Minister for Immigration & Anor
[2007] FMCA 817 Para 6

…t it could not be systematic. This aspect of the matter is demonstrated by the decision of Cameron FM in SJVD & Ors v Minister for Immigration & Anor [2007] FMCA 817. In that case His Honour was dealing with a claim by a Bangladeshi citizen for asylum on the basis of political persecution on account of his members…
Antipova v Minister for Immigration and Multicultural and Indigenous Affairs
[2006] FCA 584 Para 28

…case of s.51A as “especially plain”. It is also true that Gray J in Antipova v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 584 makes trenchant criticism of the Full Court decision in Lay Lat and observed at [96] that the remarks as to the effect of ss.51A, 357A and 422B were “cle…
Minister for Immigration and Multicultural Affairs v Lay Lat
[2006] FCAFC 61 Para 27

…eral Court are set out in [61] of the judgment of the Full Court of the Federal Court in Lay Lat v Minister for Immigration and Multicultural Affairs [2006] FCAFC 61. That same decision determines that s.51A of the Act and what the Court describes as the “corresponding provisions of s.357A and s.422B” (see [60]) w…
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] HCA 62 Para 32

…ment was placed upon the decision of the High Court in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1. NAFF was an unusual set of circumstances, the most critical of which was the circumstance of the Tribunal’s statement at the conclusion of the oral hear…
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR
[2003] FCAFC 126 Para 14

…nt, placed significant reliance upon the decision of the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v SCAR (2003) 128 FCR 553. That was a case relating to an asylum seeker whose evidence at the oral hearing the Tribunal found to be vague and inconsistent. The Full Court says…
Plaintiff S157/2002 v Commonwealth
[2003] HCA 2 Para 6

…8. In the context of applications under the Act it is best explained in the High Court decision of Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476.…
Minister for Immigration and Multicultural Affairs v Haji Ibrahim
[2000] HCA 55 Para 4

…ent form for which see the discussion of the concept of systematic conduct in the decision of McHugh J in Minister for Immigration v Haji Ibrahim (2000) 204 CLR 1 at [88] – [101]. His Honour has this to say at [99] and [100]: It is an error to suggest that the use of the expression “systematic conduct” in either Mu…
Mohamed v Minister for Immigration and Multicultural Affairs
[1998] FCA 485 Para 4

…irected at him o her which can be said to be not isolated but systematic” [Mohamed v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 234 at 242]. The fear of a single act of harm done for a Convention reason will satisfy the Convention definition of persecution [Chan v Minister for Immigration and E…
Craig v South Australia
[1995] HCA 58 Para 6

…en vitiated by jurisdictional error. Jurisdictional error is a concept best explained in the High Court decision Craig v The State of South Australia [1995] HCA 58. In the context of applications under the Act it is best explained in the High Court decision of Plaintiff S157 of 2002 v Commonwealth of Australia (…
Chan v Minister for Immigration and ethnic Affairs
[1989] HCA 62 Para 4

…done for a Convention reason will satisfy the Convention definition of persecution [Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 430] if it is so oppressive that the individual cannot be expected to tolerate it so that refusal to return to the country of the applicant’s nationality is the…

Legislation cited in this decision · 1

Migration Act 1958 (Cth)
414, 422B, 424, 424A, 425, 476, 477, 91R 9 mentions (from Para 1)