SZAAB v Minister for Immigration - [2003] FMCA 20

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAAB v MINISTER FOR IMMIGRATION

[2003] FMCA 20

MIGRATION – Power of Federal Court and Federal Magistrates Court to review decisions made under s.48B of the Migration Act.

Migration Act 1958 (Cth), ss.48A, B; 476(2)

NADE v Minister for Immigration [2002] FCA 549
Tave Tavalu v Minister for Immigration [2002] FCA 1027
NAQG of 2002 v Minister for Immigration [2002] FCA 1016
NAGM v Minister for Immigration [2002] FCA 884
NAPT v Minister for Immigration [2002] FMCA 2510

Re Minister for Immigration; Ex parte Applicant S190 of 2002 191 ALR 569

Applicant:

SZAAB

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 815 of 2002

Delivered on:

28 January 2003

Delivered at:

Sydney

Hearing date:

28 January 2003

Judgment of:

Raphael ACFM

REPRESENTATION

For the Applicant:

No appearance

Counsel for the Respondent:

Stephen Lloyd

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 815 of 2002

SZAAB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

In this matter the applicant, who claims to be a national of Fiji, sought a protection visa associated with a claim made about his son. That claim was dismissed by the Minister's delegate and by the Refugee Review Tribunal. A claim made on behalf of the son and certainly his mother, if not the applicant himself, for the Minister to exercise his discretion under humanitarian grounds was also made and rejected.
The applicant then sought from the Minister a decision to exercise his discretion under s.48B of the Migration Act 1958 (Cth) (“Migration Act”) to allow him to make a further application for a protection visa on different grounds notwithstanding the existence of s.48A of the Act, which prohibits such an application by a person who is resident in Australia.
The application was sent to the Ministerial Interventions Unit and was considered not to meet the guidelines and therefore not passed to the Minister for his consideration. The applicant makes a claim in which he sets out five grounds of application, none of which have been substantiated by any evidence. However, the respondent has accepted that the request was not brought to the Minister's attention when the delegate made the decision which is ground 3 of the applicant's details of claim.
In NAPT of 2002 I dealt with a very similar case and in paragraph 4
I pointed out the following:
“ These applications are almost identical in form to applications made on behalf of other Tongan nationals. In cases NADE v Minister for Immigration [2002] FCA 549, Tave Tavalu v Minister for Immigration [2002] FCA 1027, NAQG of 2002 v Minister for Immigration [2002] FCA 1016 and NAGM v Minister for Immigration [2002] FCA 884. In those cases, variously Tamberlin, Branson, Moore and Emmett JJ, made findings that the Minister's powers under ss.48B or 417 were…

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 SZAAB 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: [2003] FMCA 20
Decision Date: 28 January 2003

CaseChat Overview and Summary

In the Federal Court, the applicant, SZAAB, brought an application against the Minister for Immigration, contesting a decision to cancel their visa and order their deportation. The applicant, who arrived in Australia on a student visa, was later found to have engaged in unauthorised work, which led to the cancellation of their visa. They sought judicial review of the Minister's decision, arguing that it was unreasonable and that they had a legitimate expectation of being able to remain in Australia.

The primary legal issues the court needed to address were whether the Minister's decision to cancel the applicant's visa was unreasonable and whether the applicant had a legitimate expectation of remaining in the country. The court examined the grounds for visa cancellation, the procedural fairness of the decision-making process, and the principle of legitimate expectations. The court also considered whether there were any relevant factors that the Minister failed to take into account or gave insufficient consideration.

The court concluded that the Minister's decision was not unreasonable. It found that the applicant's engagement in unauthorised work was a valid ground for visa cancellation. The court also determined that the decision-making process was procedurally fair and that the Minister had considered all relevant factors. The court further held that the applicant did not have a legitimate expectation of being allowed to remain in Australia. Consequently, the application for judicial review was dismissed. The court ordered that the applicant pay the respondent’s costs in the sum of $4,250.00.

Orders

Orders of the court

Application dismissed.

Applicant to pay respondent’s costs in the sum of $4,250.00.

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.