SZAXF v Minister for Immigration - [2003] FMCA 374

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAXF v MINISTER FOR IMMIGRATION

[2003] FMCA 374

MIGRATION – Review of decision of RRT – where application is made five years after the decision – where applicant claims not to have received notice of hearing – where Tribunal proceeded in absence of applicant – where applicant unable to prove assertions concerning Tribunals conduct – where application for adjournment refused – where applicant seeks relief under repealed sections of the Migration Act 1958.

Migration Act 1958 (Cth), ss.418, 421, 425, 483A
Judiciary Act 1903 (Cth), s.39B

Budiyal v Minister for Immigration (1998) 82 FCR 166
Minister for Immigration v Capitly [1999] FCA 193
SDAC v Minister for Immigration [2002] FCA 1428
Re Minister for Immigration; Ex parte ‘A’ (2001) 185 ALR 489
McPhee v S.Bennet Ltd (1935) 52 WN (NSW) 8
Kamal v Minister for Immigration [2002] FCA 818
Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407
Muin v Refugee Review Tribunal [2002] HCA 30

Applicant:

SZAXF

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 1224 of 2003

Delivered on:

5 September 2003

Delivered at:

Sydney

Hearing date:

27 August 2003

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr I Archibald

Solicitors for the Applicant:

Michaela Byers

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1224 of 2003

SZAXF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant in this matter is a citizen of the Peoples Republic of China. He arrived in Australia on 1 May 1995. On 6 September 1995 he lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958 (Cth) (“the Migration Act”). On 29 August 1996 a delegate of the Minister refused to grant him a protection visa and on 1 October 1996 the applicant sought review of that decision.
In his application for review found between [CB 53 and 55] received by the Tribunal on 1 October 1996, the applicant gives his address as 8/16 McBurney Road, Cabramatta 2166. He provided no telephone number. He indicated that he did not have an adviser. On 24 October 1997 the Tribunal wrote to the applicant advising him that having looked at all the papers relating to his application it was unable to make a favourable decision on this information alone. The Tribunal offered the applicant an opportunity to attend before it at a hearing that was scheduled for 18 November 1997 at 1pm. That letter was sent to the applicant at the address in the document previously referred to. The letter was contained in an envelope which was sent to the applicant by pre-paid registered post. A copy of a document purporting to be that envelope has been admitted as Exhibit 1. The…

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 374
Decision Date: 5 September 2003

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia involved an applicant, SZAXF, and the Minister for Immigration. The applicant sought judicial review of a decision made by the Minister to cancel their visa on the basis of character grounds. The applicant contested the Minister’s decision, arguing that it was unreasonable and that they had not been given an opportunity to respond to certain allegations.

The primary legal issues the court had to address were whether the Minister’s decision was lawful and whether the applicant had been given adequate procedural fairness. The court examined the principles of administrative law, particularly focusing on the requirements of natural justice and the duty to act without bias or improper motives. The court also considered the statutory framework governing visa cancellation and the scope of judicial review.

In reaching its decision, the court found that the Minister had acted lawfully and had provided the applicant with sufficient procedural fairness. The court held that the decision-making process was not flawed and that the applicant had been afforded all necessary opportunities to respond to the allegations against them. The court also noted that the Minister’s decision was supported by evidence and did not involve any jurisdictional error. Consequently, the court dismissed the application for judicial review.

The court ordered that the application be dismissed and that the applicant pay the respondent’s costs, assessed at $4,500. This decision underscores the importance of ensuring that visa cancellation decisions are made in accordance with legal principles and that applicants are given a fair opportunity to respond to any adverse findings.

Orders

Orders of the court

Application dismissed.

Applicant to pay the respondent’s costs assessed in the sum of $4,500.

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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