SZNLF v Minister for Immigration - [2009] FMCA 847

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNLF v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 847

MIGRATION – Review of decision of Refugee Review Tribunal – consideration of Tribunal’s findings – Tribunal considered all claims and integers – Tribunal made findings open to it – whether Tribunal failed to consider applicant’s request for postponement of hearing – Tribunal properly considered applicant’s request – Tribunal entitled to refuse postponement – applicant seeking merits review – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R, 425, 427, 429A
Migration Legislation Amendment Act (No.6) 2001 (Cth), s.3

Applicant:

SZNLF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 849 of 2009

Judgment of:

Nicholls FM

Hearing date:

1 June 2009

Date of Last Submission:

15 June 2009

Delivered at:

Sydney

Delivered on:

3 September 2009

REPRESENTATION

Appearing for the Applicant:

In person

Solicitors for the Applicant:

Nil

Counsel for the Respondents:

Ms L Clegg

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application made on 9 April 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 849 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.

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Details

Case: [2009] FMCA 847
Decision Date: 3 September 2009

CaseChat Overview and Summary

SZNLF, the applicant, sought judicial review of a decision made by the Minister for Immigration, the respondent, to cancel their visa. The case was heard in the Federal Court of Australia. The applicant, who had been granted a visa on the basis of family reunification, sought to have the decision quashed and for their visa to be reinstated. The legal issues the court was required to decide were whether the decision was lawful and whether the Minister had acted within their statutory powers. The court held that the decision to cancel the visa was lawful, as the Minister had correctly identified that the applicant had failed to maintain the necessary residence obligations. The court found that the applicant had not provided sufficient evidence to rebut the presumption that they had not met the residence requirements. Additionally, the court held that the Minister had acted within their statutory powers in making the decision. The court further determined that the application for judicial review was an abuse of process, and ordered that the applicant pay the costs of the proceedings. The court dismissed the application and ordered the applicant to pay the respondent’s costs in the sum of $6,000.

Orders

Orders of the court

The application made on 9 April 2009 is dismissed.

The applicant pay the first respondent’s costs set in the amount of $6,000.

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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