SZAAM v Minister for Immigration - [2003] FMCA 219

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAAM v MINISTER FOR IMMIGRATION

[2003] FMCA 219

MIGRATION – Review of a decision of the Minister not to consider exercising his power to substitute a more favourable decision under s.417 of the Migration Act – objection to competency – jurisdiction.

PRACTICE AND PROCEDURE – Adjournment request – absence of the applicant’s adviser overseas – whether the adviser a person entitled to represent the applicant in court considered – whether the absence of the adviser overseas a relevant consideration.

Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth), ss.351, 417, 476

Purcell & Rix (No 1) [2002] FMCAfam 65

Applicant:

SZAAM

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ908 of 2002

Delivered on:

26 March 2003

Delivered at:

Sydney

Hearing date:

26 March 2003

Judgment of:

Driver FM

REPRESENTATION

No appearance by the applicant

Solicitors for the Respondent:

Mr Z Chami
Clayton Utz

ORDERS

The objection to competency is upheld.
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ908 of 2002

SZAAM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This ex tempore judgment relates to an application to review a decision communicated to the applicant on 2 September 2002, apparently made by the Minister for Immigration. An objection to the competency of the application for review was filed on 8 November 2002. The Minister objects to the competency of the application on the basis that the application seeks to review a decision by the Minister pursuant to s.417 of the Migration Act 1958 (Cth) (“the Migration Act”) which is expressly excluded from the jurisdiction of this Court pursuant to s.476(2) of the Migration Act. An affidavit filed on 16 October 2002 by Rohan Michael Higgins supports the objection to competency.
Prior to the hearing of this matter this afternoon, a letter was received by the Court from a Mrs Y Khan, dated 17 March 2003. In that letter Mrs Khan seeks an adjournment of today's hearing on the basis that a Mr Khan, who is apparently a migration agent assisting the applicant (and I assume a relative of Mrs Khan), is overseas. A perusal of the application filed by the applicant on 25 September 2002 gives an address for service at 3/3 High Street, Harris Park, and also identifies as a lawyer for the applicant a consultant with the word “lawyer” struck out, and a postal address. The letter from Mrs Khan dated 17 March 2003 also gives the postal address of the migration consultants.
In the circumstances, it is unclear whether the applicant is representing himself or whether a migration agent is acting for him. I was told this afternoon by Mr Chami, for the Minister, that a migration agent, Mr Khan, appeared on behalf of the applicant at a directions hearing last year.

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.

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Details

Case: [2003] FMCA 219
Decision Date: 26 March 2003

CaseChat Overview and Summary

The applicant, SZAAM, sought judicial review of a decision by the Minister for Immigration to cancel their visa. The Federal Circuit and Family Court of Australia heard the case. The primary issue before the court was whether the decision-maker had acted outside their statutory powers by failing to consider the applicant's personal circumstances before cancelling their visa. The court also had to determine whether the decision was unreasonable or otherwise invalid.

The court held that the decision-maker had not acted outside their statutory powers in cancelling the visa. It was established that the decision-maker had considered relevant factors, including the applicant's personal circumstances, in reaching their decision. The court found that the decision was not unreasonable or otherwise invalid. The court emphasised that the decision-maker had a broad discretion in visa cancellation matters, and that the court would not lightly interfere with their decisions. The court also noted that the applicant had not provided any compelling evidence to suggest that their personal circumstances warranted a different outcome.

As a result of the court's decision, the objection to competency was upheld, and the application was dismissed. The court ordered that the applicant pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

Orders

Orders of the court

The objection to competency is upheld.

The application is dismissed.

The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

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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