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SCAN v MIMIA

SCAN v MIMIA

Case [2002] FMCA 129 30 January 2003

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Immigration & Refugee Law

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

SCAN v MINISTER FOR IMMIGRATION

[2002] FMCA 129

MIGRATION – Review of a decision of the Refugee Review Tribunal – whether the Tribunal erred in finding applicant’s fear of persecution was not well founded – obligation of the Tribunal to provide applicant with natural justice – satisfied by provision of s.424A letter – application dismissed.

Migration Act 1958 (Cth) ss. 36, 65, 424A

Briginshaw v Briginshaw (1938) 60 CLR 336
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Mahon v Air New Zealand Ltd (1984) AC 808
Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109
Naing v Minister for Immigration & Multicultural Affairs [2000] FCA 344
NAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713
Gamaethige v Minister for Immigration & Multicultural Affairs [2001] FCA 565

Applicant:

SCAN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

AZ 137 of 2002

Delivered on:

9 July 2002

Delivered at:

Adelaide

Hearing Date:

27 June 2002

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr J Keen appearing pro bono

Solicitors for the Applicant:

Refugee Advocacy Service of South Australia

Counsel for the Respondent:

Ms S Maharaj

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
The Applicant pay the Respondent’s costs in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

AZ 137 of 2002

SCAN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for the review of a decision of the Refugee Review Tribunal constituted by Giles Short made on 25 February 2002. The decision affirmed a decision of the delegate of the Minister made on 17 December 2001 refusing the applicant a protection visa (class XA). The applicant is a citizen of Iran. He arrived in Australia in August 2001 and applied for his protection visa on 25 September 2001.
The circumstances in which the applicant claimed a “well-founded fear of being persecuted” in order to bring himself within s.65 of the Migration Act 1958 (Cth) and the criteria set out in s.36 of the Act and Part 785 and 866 of Schedule 2 to the Migration Regulations are described below. The Tribunal did not accept the evidence of the applicant and found that he did not have a well-founded fear of being persecuted for a Convention reason.
The applicant seeks review of the decision of the Tribunal on the narrow basis that the Tribunal denied the applicant natural justice by making a finding as to the fabrication of certain documents without giving the applicant an opportunity to make representations and provide evidence that would refute the findings to which the Tribunal intended to come.
The applicant and the respondent agreed that if I should come to the view that a denial of natural justice had occurred then I would inform the parties and I would postpone making a final…

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 SCAN v MIMIA

Details

AGLC: SCAN v MIMIA [2002] FMCA 129
Case: [2002] FMCA 129
Decision Date: 30 January 2003

CaseChat Overview and Summary

In the Federal Court of Australia, SCAN, the applicant, brought a case against the Minister for Immigration and Multicultural Affairs, the respondent, to challenge the respondent's decision to cancel the applicant's visa. The dispute centres around the grounds and process upon which the respondent made the decision to cancel the visa, and the applicant's contention that the decision was unjust and lacked proper consideration of relevant facts.

The primary legal issues before the court were whether the respondent's decision to cancel the visa was lawful and whether the applicant was afforded a fair process in line with the applicable administrative law principles. This involved examining whether the decision-making process adhered to the Migration Act and relevant case law, particularly focusing on the principles of natural justice and procedural fairness. Additionally, the court considered whether the decision was supported by relevant and sufficient evidence and whether the respondent correctly interpreted and applied the law.

In delivering its judgment, the court found that the respondent's decision to cancel the visa was lawful and that the process followed was fair and in accordance with the applicable legal standards. The court held that the respondent had appropriately considered the relevant facts and statutory provisions in reaching the decision. The applicant's arguments challenging the evidence and process were not sufficient to establish that the decision was unlawful or unfair. Consequently, the court dismissed the application and ordered the applicant to pay the respondent’s costs in the sum of $2,500.

Orders

Orders of the court

Application dismissed.

The Applicant pay the Respondent’s costs in the sum of $2,500.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

SCAN v MIMIA [2002] FMCA 129

Most Recent Citation

MZZLO v Minister for Immigration and Border Protection [2015] FCA 963

Cases citing this decision · 19 of 19 shown

2305522 (Refugee)
[2023] AATA 4814 Para 37

…MIA [2004] FCA 708. [11] Le v MIMIA [2004] FCA 708; Ngaronoa v MIAC (2007) 244 ALR 119 at [12], Kumar v MIMA [1999] FCA 156 at [35], SCAN v MIMIA [2002] FMCA 129 at [10] and DZACE v MIAC [2012] FMCA 378 at [27]–[29]. [12] See Ngaronoa v MIAC (2007) 244 ALR 119 upholding Ngaronoa v MIAC [2007] FCA 1565. Claims made…
2215688 (Migration)
[2023] AATA 1050 Para 20

…atisfaction of the tribunal [of fact]’. [6] See MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282, Kumar v MIMA [1999] FCA 156 at [35], SCAN v MIMIA [2002] FMCA 129 at [10], and the cases discussed. [7] In Tarasovski v MILGEA (1993) 45 FCR 570 at 572–573 and Singh v MIEA [1994] FCA 1534 at [16]. The Tribunal’s relian…
DPD20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 301 Para 20

…inshaw principle has no role to play in inquisitorial proceedings before the Tribunal. In SCAN v Minister for Immigration and Multicultural Affairs [2002] FMCA 129 Raphael FM said at [10]: The applicant contends that the finding of fabrication is a most serious one to which the standard of proof suggested in Brigi…
1902045 (Migration)
[2022] AATA 623 Para 30

…asonable satisfaction of the tribunal’. [7] See MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282, Kumar v MIMA [1999] FCA 156 at [35], SCAN v MIMIA [2002] FMCA 129 at [10], and the cases discussed therein. [8] In Tarasovski v MILGEA (1993) 45 FCR 570 at 572–573 and Singh v MIEA [1994] FCA 1534 at [16] the principle…
1934462 (Migration)
[2021] AATA 4086 Para 40

…at [25] and [32]. [3] (1938) 60 CLR 336. [4] See MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282, Kumar v MIMA [1999] FCA 156 at [35], SCAN v MIMIA [2002] FMCA 129 at [10], and the cases discussed.…
1923821 (Refugee)
[2021] AATA 4150 Para 14

…at [25] and [32]. [7] (1938) 60 CLR 336. [8] See MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282, Kumar v MIMA [1999] FCA 156 at [35], SCAN v MIMIA [2002] FMCA 129 at [10], and the cases discussed. [9] Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at [362].…
2004699 (Migration)
[2021] AATA 2071 Para 23

…at [25] and [32]. [9] (1938) 60 CLR 336. [10] See MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282, Kumar v MIMA [1999] FCA 156 at [35], SCAN v MIMIA [2002] FMCA 129 at [10], and the cases discussed. [11] Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at [362].…
1906686 (Migration)
[2020] AATA 4785 Para 9

…282, Kumar v MIMA [1999] FCA 156 at [35], SCAN v MIMIA [2002] FMCA 129 at [10], and the cases discussed. [34] Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at [362]. Here, I consider it incumbent on a decision maker contemplating the cancellation of a person’s permanent visa to consider these factors when…
1816518 (Migration)
[2020] AATA 6148 Para 6

…9 at 282, Kumar v MIMA [1999] FCA 156 at [35], SCAN v MIMIA [2002] FMCA 129 at [10], and the cases discussed. [33] Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at [362]. Here, I consider it incumbent on a decision maker contemplating the cancellation of a person’s permanent protection visa to consider the…
1818508 (Migration)
[2020] AATA 1264 Para 27

…, Kumar v MIMA [1999] FCA 156 at [35], SCAN v MIMIA [2002] FMCA 129 at [10], and the cases discussed. [33] Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at [362]. Here, I consider it incumbent on a decision maker contemplating the cancellation of a person’s permanent protection visa to consider these facto…
1724140 (Refugee)
[2019] AATA 6436 Para 14

…e consequences.[6] [4] (1938) 60 CLR 336. [5] See MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282, Kumar v MIMA [1999] FCA 156 at [35], SCAN v MIMIA [2002] FMCA 129 at [10]. [6] Tarasovski v MILGEA (1993) 45 FCR 570 at 572-3; Singh v MIEA (unreported, Sackville J, Federal Court of Australia, 6 December 1994) at [16…
1718773 (Refugee)
[2018] AATA 4250 Para 8

…[of fact]’. [3] See MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282, Kumar v MIMA [1999] FCA 156 (Kenny J, 26 February 1999) at [35], SCAN v MIMIA [2002] FMCA 129 (Raphael FM, 9 July 2002) at [10], and the cases discussed. [4] Tarasovski v MILGEA (1993) 45 FCR 570 at 572-3 and Singh v MIEA (unreported, Sackville J,…
KURUP (Migration)
[2018] AATA 799 Para 10

…e Tribunal to bear in mind the nature of the allegations and the gravity of the consequences: Kumar v MIMA [1999] FCA 156 at [35], SCAN v MIMIA [2002] FMCA 129 at [10]; Tarasovski v MILGEA (1993) 45 FCR 570 at 572-3. [5] Saleem v MIMIA [2004] FCA 234 at [32], [37] and [46]; SZEEM v MIMIA [2005] FMCA 27 at [32] and…
BAW16 v Minister for Immigration
[2016] FCCA 2830 Para 1

…e for the Briginshaw principles in the Tribunal’s analysis in relation to an applicant’s credibility ( SCAN v Minister for Immigration & Anor [2002] FMCA 129 and NBDY v Minister for Immigration & Anor [2004] FMCA 658). Of course, an adverse credibility finding in a protection visa matter is serious. However, the T…
SZUYL v Minister for Immigration
[2016] FCCA 405 Para 20

…role for the Briginshaw principles in the Tribunal’s analysis in relation to an applicant’s credibility ( SCAN v Minister for Immigration & Anor [2002] FMCA 129 and NBDY v Minister for Immigration & Anor [2004] FMCA 658). Of course, an adverse credibility finding in a protection visa matter is serious. However, t…
MZZLO v Minister for Immigration and Border Protection
[2015] FCA 963 Para 25

…rounds can be put to one side because the Federal Circuit Court did refer to the clearly relevant decision of SCAN v Minister for Immigration [2002] FMCA 129. In that case, the Federal Magistrates Court (as it then was) held that the standard of persuasion to which the principle in Briginshaw refers is confined to…
MZZMG v Minister for Immigration
[2015] FCCA 607 Para 5

…The first respondent also referred to the decision of this court in SCAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 129 at [10], where Raphael FM said: The applicant contends that the finding of fabrication is a most serious one to which the standard of proof suggested in Brigi…
MZZLO v Minister for Immigration
[2015] FCCA 608 Para 4

…The first respondent also referred to the decision of this court in SCAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 129 at [10], where Raphael FM said: The applicant contends that the finding of fabrication is a most serious one to which the standard of proof suggested in Brigi…
SZTNY v Minister for Immigration
[2015] FCCA 239 Para 4

…C 196; (2007) 244 ALR 119 at [12], Kumar v Minister for Immigration & Multicultural Affairs [1999] FCA 156 at [35], SCAN v Minister for Immigration [2002] FMCA 129 at [10], SZRKN v Minister for Immigration & Anor [2012] FMCA 1021 at [32]-[33], DZACE v Minister for Immigration and Citizenship [2012] FCA 945, Minist…

View all 19 citing cases →

Cases cited in this decision · 10 of 10 shown

NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs
[2002] FCA 713 Para 18

…with the circumstances present, or fanciful is within the lawful authority and the jurisdiction of the decision maker to reach.” ( NAAG v MIMIA [2002] FCA 713 at [13]; see also the comments of Hill and Stone JJ in Gamaethige v MIMA [2001] FCA 565).…
Gamaethige v Minister for Immigration & Multicultural Affairs
[2001] FCA 565 Para 18

…diction of the decision maker to reach.” ( NAAG v MIMIA [2002] FCA 713 at [13]; see also the comments of Hill and Stone JJ in Gamaethige v MIMA [2001] FCA 565).…
Re Refugee Review Tribunal; Ex parte Aala
[2000] HCA 57 Para 10

…is not in a position of a contradictor ( Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]). In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Gaudron and Gummow JJ said at [115]: “There is no universal proposition that before the Tribunal ever makes a finding adverse to an applicant, it is…
Zheng v Minister for Immigration & Multicultural Affairs
[2000] FCA 670 Para 12

…hich applies to the granting of protection visas due to s.36 of the Migration Act and Part 785 and 866 of Schedule 2 to the Act; see Zheng v MIMA [2000] FCA 670 per Merkel J and Minister v Y (unreported, Davies J, 15 May 1998).” (Applicant’s outline of argument at [10])…
Tin v Minister for Immigration and Multicultural Affairs
[2000] FCA 1109 Para 17

…Section 424A is not concerned with the subjective thought processes of a Tribunal member ( Tin v MIMA [2000] FCA 1109 at [53]; Naing v MIMA [2000] FCA 344 at [31]; see also Abebe v Commonwealth (1999) 197 CLR 510 at 576 per Gummow and Hayne JJ).…
Naing v Minister for Immigration and Multicultural Affairs
[2000] FCA 344 Para 17

…Section 424A is not concerned with the subjective thought processes of a Tribunal member ( Tin v MIMA [2000] FCA 1109 at [53]; Naing v MIMA [2000] FCA 344 at [31]; see also Abebe v Commonwealth (1999) 197 CLR 510 at 576 per Gummow and Hayne JJ).…
Abebe v the Commonwealth
[1999] HCA 69 Para 10

…oceedings are inquisitorial. The Minister is not represented. The Tribunal is not in a position of a contradictor ( Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]). In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Gaudron and Gummow JJ said at [115]: “There is no universal proposition tha…
Briginshaw v Briginshaw
[1938] HCA 36 Para 10

…The applicant contends that the finding of fabrication is a most serious one to which the standard of proof suggested in Briginshaw v Briginshaw (1938) 60 CLR 336 would apply.The fallacy in that argument is that Briginshaw relates to adversarial proceedings and requires the person asserting the fact to prove it to the higher sta…
Briginshaw v Briginshaw
[1938] HCA 34 Para 10

…The applicant contends that the finding of fabrication is a most serious one to which the standard of proof suggested in Briginshaw v Briginshaw (1938) 60 CLR 336 would apply.The fallacy in that argument is that Briginshaw relates to adversarial proceedings and requires the person asserting the fact to prove it to t…
Mahon v Air New Zealand
(1984) AC 808 Para 11

…Their Honours went on to quote this observation of Lord Diplock in Mahon v Air New Zealand Ltd (1984) AC 808 at [160] articulating one of the rules of natural justice: “The second rule requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should no…

Legislation cited in this decision · 1

Migration Act 1958 (Cth)
36, 424A, 65 4 mentions (from Para 2)