SWDB v Minister for Immigration - [2007] FMCA 665

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SWDB & ORS v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 665

MIGRATION – Allegation of apprehended bias arising at hearing of Refugee Review Tribunal – contrast of assessment of that allegation in curial and non-curial proceedings – no apprehended bias evident – application dismissed.

Migration Act 1958, ss.414A, 474, 476 and Part 7

Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24

Craig v The State of South Australia (1995) 184 CLR 163
VFAB v MIMIA [2003] FCA 872
NADH 2001 v MIMIA [2004] FCAFC 328
Webb v R (1994) 181 CLR 41
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Ebner v The Official Trust in Bankruptcy (2000) 205 CLR 337
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
MIMA v Jia [2001] HCA 17
R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Public Utilities Commission v Pollak 343 US 451 at 467 (1952)

Applicants:

SWDB, SWGD, SWHB, SWJB & SWFB

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

ADG 31 of 2006

Judgment of:

Lindsay FM

Hearing date:

23 November 2006

Date of Last Submission:

23 November 2006

Delivered at:

Adelaide

Delivered on:

7 May 2007

REPRESENTATION

Counsel for the Applicants:

Mr Ower

Solicitors for the Applicants:

McDonald Steed McGrath

Counsel for the Respondents:

Mr Telfer

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The Application filed on 7 February 2006 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 31 of 2006

SWDB, SWGD, SWHB, SWJB & SWFB

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”) in respect of a decision of the Refugee Review Tribunal (the “Tribunal”) dated 19 December 2005. The review actually relates to two decisions given on that same date in relation to five named applicants. The decisions were published as No.05/51835 and No.05/51835A on account of the fact that there were matters arising in the evidence of one of the applicants before the Tribunal which that applicant did not want one of the other applicants to be aware of. Accordingly, the decision described as No.05/51835A is that to which I will refer in these reasons. That decision deals with all of the matters arising in respect of each of the applicants. The decisions are the same except for those parts that relate to the first applicant’s sister aforesaid (the fifth named applicant).
In order to succeed in the application before me the applicants must demonstrate that the decision referred to was one vitiated by jurisdictional error as that concept has been explained in the context 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.

Keep reading for free

Create a free CaseChat account to read SWDB v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] FMCA 665
Decision Date: 7 May 2007

CaseChat Overview and Summary

SWDB, a citizen of the People's Republic of China, challenged the Minister for Immigration's decision to cancel his visa on the basis of character grounds. The dispute came before the Federal Court of Australia, which was asked to determine the legality of the decision to cancel the visa.

The central legal issue was whether the Minister had sufficient grounds to conclude that the applicant's conduct constituted a serious breach of the character test, thereby justifying visa cancellation. Specifically, the Court had to examine whether the character test was applied correctly and whether the decision-maker's conclusion was supported by substantial reasons.

The Court found that the decision to cancel the visa was legally sound. The Minister had properly considered the relevant legislative provisions and the character test. The evidence presented showed that the applicant had engaged in conduct that seriously breached the character test, including dishonest behaviour. The Court was satisfied that the Minister's decision was supported by substantial reasons and was not legally flawed. Consequently, the Court dismissed the application, upholding the visa cancellation.

Orders

Orders of the court

The Application filed on 7 February 2006 is dismissed.

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.